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4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM:
v Chapter 7à “Statutory Interpretation”
P A R T III: INTERPLAY BETWEEN THE COURTS AND THE POLITICAL BRANCHES OF GOVERNMENT
-We now shift from a discussion of the structure and function of Canadian public law institutions to a closer examination of how the legislative, executive, and judicial branches interact with one another.
-The focus s on the relationship between the courts and the other branches of government – the legislature and he executive
-So long as Parliament or its provincial counterparts observe the binding constitutional limits on their jurisdiction, they are supreme and the courts must simply interpret and carry out their dictates as expressed in their acts.
-But if a legislature wanders beyond its constitutional limits, it must be subordinated by the courts to the Constitution.
-In this case, the courts will do 2 things:
(1) they determine the exact nature and scope of the constitutional limits, by interpreting the written Constitution and sometimes by discerning unwritten constitutional principles by which the legislature must abide. So, they perform a “constitutionalized interpretation role”
(2) they decide whether a given statute has exceeded the constitutional limits determined through interpretation. If it has, they provide a remedy (normally, the remedy is to declare that the offending legislation is invalid and has no force of effect)
-This is an example of the courts’ direct judicial review. But the courts often engage in indirect review when they interpret legislation in light of common law constitutional values such as respect for individual autonomy and private property rights.
-Clearly, the separation of powers between the judiciary and the legislative branch is critically important to Canadian democracy, which often provokes a heated debate.
-Somewhat less controversial is the relationship between the courts and the executive.
-Since the executive has limited legal powers, primarily delegated to it by the legislature by statute, the courts serve as the legislative’s foot soldiers, preventing the executive from usurping power not accorded to it by the legislative branch.
I. OVERVIEW OF STATUTORY INTERPRETATION
A. INTRODUCTION
-Although statutory interpretation is generally addressed in the context of public law, there is no area of law that is not governed at least in part by legislation.
-Furthermore, the skills required to read legislation and resolve interpretation disputes are also needed to deal with private law documents such as contracts, collective agreements, wills, and trusts.
-Additionally, they are also needed to deal with Constitutional Acts against which ordinary legislation is tested as well as treaties with aboriginal peoples and international agreements
-All these texts rely on language to set out legally binding rules.
-To determine the content of the rule, it is necessary to interpret the language of the text
B. SOURCE OF INTERPRETATION LAW
-There are 3 main sources of interpretation law: interpretation acts; interpretation rules in individual statutes and regulations; and common law
1. Interpretation Acts
-The role of the legislature is to – make law
-The role of the judiciary is to – interpret law, test its validity, and apply it to particular facts
-But it is open to a sovereign legislature to issue instructions on how particular legislation is to be interpreted
-Every Canadian jurisdiction has an Interpretation Act that contains various rules applicable to statutes in general
-Interpretation rules are also found in general acts governing the making of regulations and statute revisions.
-The following from the federal Interpretation Act is typical of what is found in this types of legislation.
-Note that the federal Act applies only to federal legislation provincial and territorial legislation is governed but the relevant local Act:
-Interpretation Act 1985 (p.379)
2. Interpretation Rules in Acts and Regulations
-Individual acts and regulations often contain definitions, application provisions, purpose statements, and the like.
-The following excerpt from the Canadian Human Rights Act contains a number of such provisions:
-Canadian Human Rights Act 1985 (p.381)
3. Common Law Rules
-Statutory interpretation is rooted in the common law, in a body of principles, presumptions, and conventions known as the “rules of statutory interpretation.”
-These rules are not binding in the way the rules of the Criminal Code are binding. Rather, they operate as guidelines.
-They offer interpreters a checklist of relevant considerations, suggestion various lines of inquiry and ensuring that no possibility has been overlooked. They are relied on by council in developing arguments and by judges to justify outcomes in interpretation disputes.
-The following excerpt provides an introduction to the common law development of statutory interpretation:
Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes (2002): (p.382)
The evolution of statutory interpretation
is the culmination of centuries of statutory interpretation of common law courts
....a brief history on how the courts used statutory interpretation...
By the 19th and 20th centuries, 2 doctrines dominated judicial thinking: parliamentary sovereignty and the rule of law.
These paved the way for literal construction and the evolution of both the “plain meaning rule” and the “golden rule”
Plain meaning rule = a court is obliged to stick to the literal meaning of the legislative text in so far as the meaning is clear
While many courts and judges profess to be strongly committed to the plain meaning rule, this commitment inevitably wavers when the consequences of applying the plain meaning are found intolerable.
In such cases, resort to the so-called ‘golden rule’, which permits courts to depart from the ordinary meaning of a text to avoid absurd consequences.
As explained by Lord Wenseleydale in Gray v Pearson[1857], the golden rule is grounded in the supervisory and mediating roles of the courts.
As the SCC noted in Secession Reference [1998], the judicial mandate in a constitutional democracy involves not only respect for democratic institutions but also adherence to the rule of law and other common law values
The legitimacy of courts derives in part from their duty to ensure an appropriate observance of, and balancing among these norms.
Although the inconsistency between the plain meaning and the golden rule meaning is evidence, there are few judges who do not rely on both as need arises.
In R v Paul [1982], Lamer relied on the a passage from Maxwell on the Interpretation of Statutes, 12th ed., by P. St. J. Langan, to virtually redraft s.645(4)(c) of the Criminal Code.
-However, this willingness to modify meaning or sentence structure in order to avoid absurd results seems to be an unavoidable aspect of interpretation.
-Today, intention, textual meaning, and acceptability of consequences are all legitimate concerns of interpreters; each has a role to play in every interpretive effort.
Current theory and practice
In theory, courts give effect to the intention of the democratically elected legislature.
In practice, at least in hard cases, courts are requires to balance a number of competing considerations in accordance with their sense of what is appropriate in the circumstances.
When engaging in interpretations, some judges see themselves as textualists, other judges are intentionalists.
Driedger’s modern principle reflects an intentionalist approach.
There is also a category of interpreters who might be labelled as normativists
In deciding how a text should be interpreted, judges take all these impressions into account , giving each the weight that seems appropriate in the circumstances.
If the legislative text seems clear, if its meaning appears to be “plain”, then a pragmatic judge assigns significant weight to this apparent meaning. The clearer the text, the greater the weight it receives.........p.385 illustrating how much weight is given...
If the intention is set out in a reliable source, its formulation is fairly precise, there are no competing intentions and the implications for the facts of the case seem clear, then this factor receives considerable weight.
Finally, judges are concerned by violations of rationality, coherence, fairness and other legal norms. ......weight attaching to these factors...p386
______________________________________________________________________
C. RANGE OF INTERPRETATION ISSUES
-Determining the meaning of words in a legislative text is an important task of interpreters, a necessary first task, but it is only part of the work of interpretation.
-Table 1 (p.387) indicates the range of issues that arise in statutory interpretation and how they are addressed.
-p. 387-889 illustrates, with case examples, the types of arguments in response
Table 1: Issues Arising in Statutory Interpretation
Types of problem
Type of argument in response
Ambiguous, vague, or incomplete text
Disputed meaning
Evolving context
Static vs Dynamic interpretation
Overinclusive text
Non-application
Underinclusive text
Incorrigible gap in legislative scheme, OR supplement with common law rule or remedy
Contradictory or incoherent text
Corrigible mistake
Overlapping provisions
No conflict: Overlap vs Exhaustive code
Conflict: Paramountcy rule
-Obviously, the types of arguments surveyed above are not mutually exclusive.
-The issues that arise in applying legislation to a given set of facts can often be framed in more than one way.
-How an issue is framed is rhetorically significant and can often affect the outcome of a case
II. AN OVERVIEW OF THE RULES OF STATUTORY INTERPRETATION
-Numerous rules exist to guide statutory interpretation, the most important of which are reviewed below
A. RULES ABOUT MEANING
-The first thing an interpreter must do is read the text and form an impression of its meaning.
· Ordinary meaning rule
A meaning that spontaneously comes to the mind of a competent reader of legislature. This is presumed to be the meaning intended by Parliament, but the presumption can be rebutted by evidence to suggest that some other meaning was intended
· Technical meaning rule
It is presumed that legislatures use words in their popular, non-technical sense. But when legislation deals with a specialized subject and uses language that people governed by the legislation would understand in a specialized way, that specialized understanding is preferred over ordinary usage.
· Shared meaning rule
If one version of a bilingual text lends itself to 2 interpretations while the other version can plausibly bear only one of those interpretations, the interpretation that is shared should be adopted
· Original meaning rule
The meaning of the words used in the legislative text is fixed at the time of enactment, but its application to facts over time is not fixed. In static interpretation, the text is applied as it would have been when the legislation was first enacted. In dynamic interpretation, the text is applied in light of circumstances and assumptions existing at the time of application. Language that is technical, concrete attracts static interpretation. Language that is general or abstract attracts a dynamic interpretations.
· Plausible meaning rule
If the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing.
-The following judgement illustrates the application of the ‘technical meaning rule’:
_____________Re Witts and Attorney General for British Columbia [1982] ____________
-A person who claims that a legislative text has a technical meaning different from its popular, non-technical meaning, has the burden of establishing:
The technical meaning of the word or expression; and
That the technical meaning was intended in this context.
-Witts illustrates that evidence of technical meaning is offered by experts in the relevant field through testimony or affidavit evidence.
-Also, legal terms of art are considered technical terms. If a word of expression has both a popular meaning and a legal meaning, the former is presumed
-The courts do NOT require expert testimony to establish the legal meaning of a word or expression
B. PRESUMPTIONS RELIED ON TO ANALYZE THE MEANING OF A TEXT
-Courts make a number of assumptions about the way legislation is drafted, which influence the way the finished product is interpreted.
-The following are the most important of these assumptions:
· Straightforward expression
The legislature chooses the clearest, simplest, and most direct way of starting its meaning.
· Uniform expression
The legislature uses the same words and techniques to express the same meaning and different words and techniques to express different meanings
· No tautology/no redundancy (“the legislature does not legislate in vain”)
There are so superfluous words in legislation; every word, every feature of the test is there for reason and plays a meaningful role in the legislative scheme.
· Internal coherence
All the provisions of a legislative text fir together logically and work together coherently to achieve the purposes of the legislation
-These assumptions are the basis of a number of so-called maxims of interpretation, including:
· Implied exclusion
If something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded.
· Associated words
The meaning of a word of phrase is affected by the other or phrases with which it is linked in a sentence
· Limited class
When a list of things that all belong to an identifiable class is followed by a more general term, the general term may be read down to include only other things within the identifiable class. For example, in the phrase “hockey, skiing, and other sports,” “sports” may be read down to include only sports that are played in winter.
· The legislature would have said “x”
A legitimate basis for rejecting a proposed interpretation is to point out that had the legislature intended the proposed interpretation, it would have framed the legislation in a different way, as it did elsewhere in the Act or regulation or elsewhere in the stature book
-In the Witts case, the petitioner appealed unsuccessfully to the implied exclusion rule. He argued that when the legislature wished to depart from the ordinary meaning of a word, it did so expressly by setting out its preferred definition to the terms, as evidences but the definition of “age” in the regulation. Since “sex” was NOT identified, it should be govern ordinary meaning.
-The following judgement illustrates reliance on the ordinary meaning rule, the associated words rule, and the no tautology rule:
_____________________________R v Daoust [2004] ______________________________
Facts: Appeal by the Crown from a decision setting aside the convictions of the accused, Daoust and Bois, on charges of laundering proceeds of crime. The accused owned and managed a second-hand store. Suspecting that they were selling stolen goods, Quebec City police sent an undercover officer who sold goods to the accused which he hinted were stolen. At the final transaction, the accused told the officer that they would not accept further merchandise, as they could not always be helping him to steal. The accused were charged under s. 462.31 of the Criminal Code with having "transferred the possession of property with the intention to conceal or convert that property, knowing ... that ... that property was obtained ... as a result of the commission ... of an enterprise crime offence." They were found guilty of laundering proceeds of crime. The Quebec Court of Appeal set aside the convictions, and the Crown appealed to the Supreme Court of Canada.
HELD: Appeal dismissed. The English and French versions of s. 462.31 presented different variations of the offence of laundering proceeds of crime. The French version simply listed the acts constituting the actus reus of the offence, while the English version listed the same acts and added a prohibition against any other dealings with respect to the property or its proceeds. The English version could not be adopted because words that could broaden the scope of a penal statute could not be read in. Even if the legislative history showed that the English version was Parliament's true intent, the text of the statute did not support that intent. As well, where two versions of a provision were irreconcilable, the common meaning of the two versions was to be favoured. The common meaning was the narrower version, which was the French version.
Therefore, the actus reus of the offence had not been made out, as the activities described in the French version only concerned the person who originally had the object in his or her possession, and did not involve one who bought or received the property. The purchase was not a transfer of possession within the meaning of s. 462.31. The Crown could not seek to substitute a conviction for the offence of attempted laundering, as that offence was never alleged, and the indictment could not be amended at this stage of the proceedings.
[53] In the present case, the evidence shows that the respondents bought the
merchandise believing it to be stolen. However, in light of the foregoing, the act of
purchasing this merchandise is not the equivalent of “transfers the possession of”, which is the element of the offence specified in the indictment and which the Crown must prove. For this reason, it is my opinion that the respondents did not transfer the
possession of the property within the meaning of s. 462.31.
-Here, the court supports its understanding of “transfer” by claiming that it is the ordinary meaning of the word. It implicitly relied on the presumption in favour of ordinary meaning.
-To reject ordinary meaning, the court would have to establish that there were cogent grounds to belief that some other meaning was intended.
-Given the diverse experience of readers, which gives rise to different knowledge, impressions, assumptions, and values, is it possible to suppose that ordinary meaning is the same for everyone?
-To determine the ordinary meaning of language, courts rely on their own linguistic intuitions.
-Dictionaries can only indicate a range of the meanings a word is capable of bearing; they can never indicate what a word means in a particular context
-Bastarche J relies on both ordinary language and dictionaries in ‘Black’s Law Dictionary’ to establish the ordinary meaning of “transfer”
C. PURPOSE AND SCHEME ANALYSIS
-All legislation is enacted for a purpose – to achieve a particular outcome by imposing new obligations or prohibitions or creating a new rights or privileges.
-This feature of legislation is reflected in the following rules:
· Legislative purpose
Interpreters must always try to determine the purposes of legislation and, in so far as the text permits, adopt an interpretation that promotes or at least consistent with those purposes. Interpretations that would tend to defeat legislative purpose are considered absurd.
The vaguer the language of the legislative text, the more discretion is conferred on the tribunal or court that applies it, and the greater is the importance of purpose in adopting an appropriate interpretation.
· Interpretation Acts
The Interpretation Act of every Canadian jurisdiction includes a provision that directs interpreters to give every enactment “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” In other words, an interpretation that promotes the purpose of legislation is to be preferred over strict construction. Notice, however, that when legislation has been drafted in an overly broad fashion, a narrow interpretation will be one that best ensures the attainment of its objects.
· Legislative scheme
The provisions of an Act are presumed to work together as parts of a coherent scheme designed to implement the legislature’s goals. It is often helpful to look at the titles, headings, and subheadings and at the sequence of marginal or sectional notes to get an indication of the scheme.
To determine how a particular provision contributes to the scheme, ask yourself why the provision was included. Knowing how a provision contributes to a scheme generally is a good indicator of how it should be interpreted.
___________________________R v Chartrand [1994] _____________________________
Facts: The accused, aged 43, was hitting golf balls in a field in the school yard when T, aged 8, and his friends A and J, asked him if they could catch the balls with their baseball gloves. The young boys had first met the accused in that same field the previous summer, but only knew him by his first name. They played for a while and then A and J left to get refreshments. When they returned, they found T and the accused in a wooded area at the edge of the school yard. The accused was taking pictures of T and, when the two boys began to interfere with that activity, the accused became annoyed and asked them several times to leave him and T alone. Eventually, the accused suggested to T that they could go to a nearby bridge. Although A and J told T not to go, T entered the accused's car and left with him. They drove approximately 2.9 km, stopping at various locations to take pictures. When T's father was informed of the situation by J's mother, he began a search with the help of others, including a police officer. T's father found his child sometime later and confronted the accused. The latter indicated that he had only intended to take pictures of T as a surprise for T's parents. As a consequence of these events, the accused was charged with several offences, including abduction of a person under 14 years of age contrary to s. 281 of the Criminal Code.
At trial, at the close of the Crown’s case, the trial judge granted the defence’s motion for a directed verdict on the s. 281 charge. He found that the Crown had failed to prove the essential elements of the offence as there was no evidence upon which a jury properly instructed could arrive at the conclusion that the accused intended to deprive T’s parents of the possession of their child by an unlawful act.
The Court of Appeal dismissed the Crown's appeal.
SCC HELD: The appeal should be allowed and a new trial ordered.
The word "unlawfully" (illégalement) which appears in the English, but not in the French, text of s. 281 of the Code does not entail evidence beyond that of the taking by a person without legal authority over the child. The word "unlawfully" has generally been interpreted to mean "without lawful justification, authority or excuse" and in s. 281 is surplusage as the general defences, justifications and excuses available under the Code apply to the offence of abduction just as they do for other offences generally. This interpretation of the word "unlawfully" is in accord with the purpose of the section, which is to prevent and punish a stranger intending to deprive the parent, guardian or person who has the lawful care or charge of the child of the ability to exercise physical control over the child. It also accords with the protection of those persons who innocently take a child out of the control of the person lawfully in charge of the child and who may well be able to provide justification for their conduct. Retaining the word "unlawfully" in the English text of s. 281 was a mere oversight and the French text reflects the true intent of Parliament when it redrafted in 1982 the section to apply only to abduction by strangers. Consequently, there was no necessity for the Crown to prove an additional unlawful act or some element of unlawfulness beyond the taking of a child by a person who did not have lawful authority over the child and the trial judge was in error in so interpreting s. 281 of the Code.
Although the proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the mens rea can be established by the mere fact of depriving the child's parent (or guardian or any other person having the lawful care or charge of the child) of possession of the child through the taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result from the taking, independently of the purpose or motive for which such taking occurred.
Given the proper interpretation of s. 281 and the evidence adduced, the trial judge erred in granting the motion for a directed verdict and the Court of Appeal should have allowed the appeal. There was evidence upon which a reasonable jury properly instructed could conclude that the accused would have known or foreseen that his actions in taking or enticing the 8‑year‑old boy would be certain or substantially certain to result in his parents being deprived of their ability to exercise control over him.
-Notice the several ways in which L’Heureux-Dube determines the purpose of s.281
-First she analyzes the similarities and differences among the several provisions dealing with abduction and infers the rationale for each provision
-Next she considers the social context in which the legislation was amended and the mischief it was meant to cure.
-She also briefly refers to the purpose of criminal law generally, citing as authority a number of standard texts
-Notice also that L’Heureux-Dube relied on both a disputed word argument (“unlawfully” in s.281 means without lawful excuse) and a corrigible mistake argument (retaining “unlawfully” in English text was a mere oversight, a mistake).
D. MISTAKE AND GAPS IN THE LEGISLATIVE SCHEME
· Corrigible mistakes
Although the legislature is presumed not to make mistakes, the presumption is rebutted by persuasive evidence that the text does not accurately reflect the rule the legislature intended to enact. The courts have jurisdiction to reflect such mistakes, unless the mistake amounts to a gap in the legislative scheme
· Incorrigible gaps
The courts almost always deny jurisdiction to cure a gap in a legislative scheme or to otherwise cure underinclusive provisions by making them apply to facts outside the ambit of the language of the text. Curing an underinclusive scheme or provision amounts to “reading in,” which is generally considered a form of judicial legislation, as opposed to “reading down,” which is not
· Supplementing legislation by reliance on common law or civil law
Although the courts cannot cure underinclusive legislation by expanding its scope beyond what the text allows, it can rely on supplemental sources of law to complement what the legislative scheme provides. In doing so, it must often address the difficult question of the relationship between statute law and common law.
E. PRESUMPTIONS OF LEGISLAITVE INTENT
-The presumption of legislative intent are formal expressions of evolving common law norms.
-One of the recurring issues in statutory interpretation is whether the courts should apply the same rules and techniques to all legislation, regardless of its subject matter or purpose.
-Legislation what interferes with individual rights or freedoms is considered “penal” and attracts a “strict” construction.
-Legislation that cures mischief or confers benefits is considered “remedial” and attracts a “liberal” construction.
-In addition to these, the courts control legislative initiatives by imputing to the legislature an intention to abide by norms that the courts consider important. These are called the ‘presumption of legislative intent’ (see pg.404 for a list of these presumptions)
F. AVOIDING ABSURDITY
-It is presumed that the legislature does not intend its legislation to produce absurd consequences. Thus, an interpretation that avoids such consequences is preferred.
-Forms of absurdity are:
Irrational distinctions; contradictory/anomalous effects; defeating legislative purpose; undermining the efficient application of legislation; and violating the norms of justice/fairness
G. RELATION TO OTHER LEGISLATIVE AND OTHER SOURCES OF LAW (p205)
· Constitutional law
· Regulations
· Regulated legislation (statutes)
· The statute book
· Common law
· International law
H. EXTRINSIC AIDS
-Resolving interpretation issues can often be assisted by so-called extrinsic aids, including the following:
· Legislative source
· Legislative history
· Legislative evolution
· Expert opinion
-The rules governing the admissibility and use of this material are complex and in a state of flux.
-In practice, the courts tend to accept whatever material is offered, provided it is relevant to the issues before the court and will not take the other party by surprise.
-However, the appellate courts have not gone out of their way to establish clear principles and guidelines in this area. Courts sometimes decline to look at this material if it contradicts what appears to be the “plain meaning” of the legislative text.
III. SOME ILLUSTRATIONS
-The 4 cases set out below illustrate how the courts tackle statutory interpretation.
_____________________________ R v McIntosh [1995] ____________________________
Facts: The accused, a disc jockey, had given the deceased, who lived in the same neighbourhood, some sound equipment to repair. Over the next eight months the accused made several attempts to retrieve his equipment, but the deceased actively avoided him. On the day of the killing, the accused's girlfriend saw the deceased working outside and informed the accused. The accused obtained a kitchen knife and approached the deceased. Words were exchanged. According to the accused, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the accused. The accused reacted by stabbing the deceased with the kitchen knife. At his trial on a charge of second degree murder the accused took the position that the stabbing of the deceased was an act of self‑defence.
HELD: appeal dismissed. Section 34(2) was clearly available to an initial aggressor, as it did not contain the explicit limitation that appeared in s. 34(1), "without having provoked the assault". Using a contextual approach to statutory interpretation, those words should not be read in. Here, the trial judge erred in so narrowing s. 34(2) to preclude accused's reliance upon it. Where the language of a provision was clear and capable of only one meaning, it had to be enforced, however absurd, harsh or contrary to common sense the result may be. Even assuming that absurdity itself was sufficient to create ambiguity, a literal interpretation of s. 34(2) was to be preferred, as the direct and potentially profound impact of the Code on personal liberty was such that it required an interpretive approach that was most favourable to accused. Section 37 served a gap-filling role, providing the basis for a defence where ss. 34 and 35 were not applicable. As accused could advance scenarios where ss. 34 as interpreted herein and 35 would afford him a defence, there was not room for s. 37 in this case.
Lamer – (majority)
[34] ...I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.
[41] Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.
[42] What is most important in this case is that s. 34(2) applies on its face to initial aggressors, and is therefore open to such an interpretation. This interpretation is more favourable to accused persons than the alternative advanced by the Crown. Moreover, this interpretation is consistent with the clear wording of s. 34(2), thus providing certainty for citizens. Although I appreciate the efforts of the Crown to underscore the problems with the Criminal Code's self-defence regime through a broad historical, academic and policy-based analysis, I suspect that very few citizens are equipped to engage in this kind of interpretive approach. Rare will be the citizen who will read ss. 34 and 35, and recognize the logical inconsistencies as between the two provisions. Rarer still will be the citizen who will read the provisions and conclude that they are inconsistent with the common law, or with Parliament's intention in 1892, or with margin notes. Given that citizens have to live with the Criminal Code, and with judicial interpretations of the provisions of the Code, I am of the view that s. 34(2) must be interpreted according to its plain terms. It is therefore available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself.
[47] With respect, Moldaver J. erred in instructing the jury at the respondent's trial that s. 34(2) was not available to an initial aggressor. I therefore am in agreement with the Ontario Court of Appeal. The appeal is dismissed, the respondent's conviction set aside and a new trial.
McLachlin – (dissent)
[48] This case raises the issue of whether a person who provokes another person to assault him can rely on the defence of self-defence, notwithstanding the fact that he failed to retreat from the assault he provoked. The Chief Justice would answer this question in the affirmative. I, with respect, take a different view.
[50] It was open to the jury to find, in this scenario, that McIntosh had provoked the assault by threatening the deceased while armed with a knife. This raised the question of which of the self-defence provisions of the Criminal Code apply to a person who provokes the aggression that led to the killing. The answer depends on the interpretation accorded to ss. 34 and 35 of the Criminal Code, R.S.C., 1985, c. C-46, which codify self-defence in Canada. Section 35 clearly applies where the accused initiated the aggression; however, it contains a requirement that the accused have attempted to retreat, and might not have assisted McIntosh. Sections 34(1) and 34(2), on the other hand, contain no requirement to retreat. Section 34(1) clearly does not apply to the initial aggressor. The debate, in these circumstances, focused on s. 34(2). If McIntosh could avail himself of s. 34(2), he would be entitled to rely on self-defence, notwithstanding findings that he provoked the fight and did not retreat.
[61] In summary, then, I take the view that this Court cannot evade the task of interpreting s. 34(2). The Court's task is to determine the intention of Parliament. The words of the section, taken alone, do not provide a clear and conclusive indication of Parliament's intention. It is therefore necessary to look further to determine Parliament's intention to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. These considerations lead, in my respectful view, to the inescapable conclusion that Parliament intended s. 34(2) to apply only to unprovoked assaults. This in turn leads to the conclusion that the trial judge was correct in declining to leave s. 34(2) with the jury.
[75] I conclude that the intention of Parliament is clear and that s. 34(2), read in its historical context, applies only to unprovoked assaults.
[79] The interpretation of ss. 34 and 35 which I have suggested is supported by policy considerations....
[83] In summary, the history, the wording and the policy underlying s. 34(2) all point to one conclusion: Parliament did not intend it to apply to provoked assault. It follows that the trial judge did not err in limiting s. 34(2) in this way in his instructions to the jury.
-Here, Lamer sees the interpretation problem as one of disputed meaning, while McLachlin sees it as a corrigible mistake.
-The majority and dissenting judgements illustrate the clash between the textualist and intentionalist approaches to interpretation.
-Lamer insists that the courts must give effect to the “plain meaning” of a legislative text, even if this leads to absurdity. McLachlin believes that the judicial mandate is to give effect to Parliament’s intent, as inferred not only from the language of the text but also from aids such as the evolution of the legislation from common law to its current formulation.
-The following is the leading case on statutory interpretation. It sets out the preferred approach of the SCC and has been cited for this purpose in countless subsequent judgements:
_____________________Re Rizzo and Rizzo Shoes Ltd. [1998] ______________________
Facts: A bankrupt firm’s employees lost their jobs when a receiving order was made with respect to the firm’s property. All wages, salaries, commissions and vacation pay were paid to the date of the receiving order. The province’s Ministry of Labour audited the firm’s records to determine if any outstanding termination or severance pay was owing to former employees under the Employment Standards Act (“ESA”) and delivered a proof of claim to the Trustee. The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly creates no entitlement to severance, termination or vacation pay under the ESA.
The Ministry successfully appealed to the Ontario Court (General Division) but the Ontario Court of Appeal overturned that court’s ruling and restored the Trustee’s decision. The Ministry sought leave to appeal from the Court of Appeal judgment but discontinued its application. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzo’s creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested and were granted an order granting them leave to appeal.
Issue: whether the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA.
HELD: The appeal should be allowed.
At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontario’s Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
The objects of the ESA and of the termination and severance pay provisions themselves are broadly premised upon the need to protect employees. Finding ss. 40 and
40a to be inapplicable in bankruptcy situations is incompatible with both the object of the ESA and the termination and severance pay provisions. The legislature does not intend to produce absurd consequences and such a consequence would result if employees dismissed before the bankruptcy were to be entitled to these benefits while those dismissed after a bankruptcy would not be so entitled. A distinction would be made between employees merely on the basis of the timing of their dismissal and such a result would arbitrarily deprive some of a means to cope with economic dislocation.
The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise. Section 2(3) of the Employment Standards
Amendment Act, 1981 exempted from severance pay obligations employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent. Section 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. If this were not the case, no readily apparent purpose would be served by this transitional provision. Further, since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.
When the express words of ss. 40 and 40a are examined in their entire context, the words “terminated by an employer” must be interpreted to include termination resulting from the bankruptcy of the employer. The impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Such an interpretation would defeat the true meaning, intent and spirit of the ESA. Termination as a result of an employer's bankruptcy therefore does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the Bankruptcy Act for termination and severance pay in accordance with ss. 40 and 40a of the ESA. It was not necessary to address the applicability of s. 7(5) of the ESA.
Iacobucci –
[1] This is an appeal by the former employees of a now bankrupt employer from an order disallowing their claims for termination pay (including vacation pay thereon) and severance pay. The case turns on an issue of statutory interpretation. Specifically, the appeal decides whether, under the relevant legislation in effect at the time of the bankruptcy, employees are entitled to claim termination and severance payments where their employment has been terminated by reason of their employer's bankruptcy.
[41] In my view, the impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Further, I believe that such an interpretation would defeat the true meaning, intent and spirit of the ESA. Therefore, I conclude that termination as a result of an employer's bankruptcy does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the BA for termination and severance pay in accordance with ss. 40 and 40a of the ESA.Because of this conclusion, I do not find it necessary to address the alternative finding of the trial judge as to the applicability of s. 7(5) of the ESA.
[42] I note that subsequent to the Rizzo bankruptcy, the termination and severance pay provisions of the ESA underwent another amendment. Sections 74(1) and 75(1) of the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O.
1995, c. 1, amend those provisions so that they now expressly provide that where employment is terminated by operation of law as a result of the bankruptcy of the employer, the employer will be deemed to have terminated the employment. However, s. 17 of the Interpretation Act directs that, “[t]he repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law”. As a result, I note that the subsequent change in the legislation has played no role in determining the present appeal.
[43] I would allow the appeal and set aside paragraph 1 of the order of the Court of Appeal. In lieu thereof, I would substitute an order declaring that Rizzo's former employees are entitled to make claims for termination pay (including vacation pay due thereon) and severance pay as unsecured creditors. ...
-Iacobucci appears to agree with the Ontario CA that the language of ss.40 and 40a of the Employment Standards Act plainly excludes loss of employment caused by bankruptcy.
-Notice that determining whether a text is “plain” or “ambiguous” is a linguistic judgement based on personal intuition
-Reading Down = accepting an interpretation of a provision that is narrower in scope than the ordinary meaning of the text would support. When a provision is read down, words of limitation or qualification are effectively added to the text, for one of the following reasons:
-the court is giving effect to limitations or qualifications that are implicit in the text or the scheme of the legislation it is therefore, giving effect to the legislature’s intent;
-the court is refusing to apply the legislation to situations that are outside the mischief the legislation was meant to address; it is, therefore, refusing to exceed the legislature’s intent; or
-the court is relying on a presumption of legislative intent.
In each case, the additional words narrow the scope of the provision and are meant to reflect the legislature’s intent.
-Reading In = the court expands the scope of a legislative provision or fills a gap in a legislative scheme, thus making the legislation apply to facts that it would not otherwise encompass given the limits of the language used in the provision or scheme. Usually, courts refuse to read in, on the ground that it amounts to amendment rather than interpretation
-The the Rizzo judgement, the SCC appears to repudiate the textual approach endorsed by the majority of the court in McIntosh.
-In both cases, the court fails to examine the French version of the legislation.
-In more recent cases, the court has served notice that it expects counsel to consider both language versions of bilingual legislation when arguing interpretation issues before the court. This current position is set out in:
________Medovarski v Canada (Minister of Citizenship and Immigration) [2005] _______
Facts:
M and E, two permanent residents, were ordered deported for serious
criminality. They each appealed to the Immigration Appeal Division of the
Immigration and Refugee Board and their removal orders were automatically stayed.
Both appeals were discontinued as a result of a transitional provision (s. 196) of the
new Immigration and Refugee Protection Act (IRPA), which took away the right to
appeal an order for removal unless a party had, under the former Act, been “granted
a stay”. In each case, the trial judge set aside the decision to discontinue the appeal.
The Federal Court of Appeal allowed the Minister of Citizenship and Immigration’s
appeal in both cases, holding that the purpose of the IRPA’s transitional provision was
to deny a right of appeal in the case of an automatic stay.
HELD: Appeals dismissed. Section 196 required dismissal of the residents' appeals. An objective of the Act was to prioritize security and to efficiently remove from the country persons who have engaged in serious criminality. The French version of the Act seemed to apply to both an automatic and an actively ordered stay, but the narrower English version applied only to actively granted stays. The deportation of a non-citizen did not implicate the liberty and security interests protected by s. 7 of the Charter or breach principles of fundamental justice.
Section 196 of the IRPA, properly interpreted, applies only to actively granted stays. The objectives of the IRPA, as expressed in s. 3, indicate an intent to prioritize security. In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible (s. 36); if they have been sentenced to a prison term of more than two years, they are denied a right to appeal their removal order (s. 64). The purpose in enacting the IRPA, and in particular s. 64, was to efficiently remove from the country persons who have engaged in serious criminality. Since s. 196 refers explicitly to s. 64, the transitional provisions should be interpreted in light of these legislative objectives. With respect to the text of s. 196, although the French version seems to apply to both an automatic and an actively ordered stay, the common meaning of the English and French versions of s. 196, which is normally the narrower version, is in this case the English version, which applies only to actively granted stays. This interpretation, which accords with
Parliament’s general object, is reinforced by the absurd effect of the broader interpretation of s. 196. If s. 196 was applicable to automatic stays, it would effectively become redundant and be reduced to an essentially meaningless statutory provision. It would also create in the context of s. 49(1) a broad exemption for inadmissible persons in the country yet accord none to similar persons outside Canada.
The deportation of a non-citizen cannot in itself implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.
Even if liberty and security of the person were engaged, any unfairness resulting from
s. 196 would be inadequate to constitute a breach of the principles of fundamental justice.
-Under the Canadian Constitution, legislation MUST BE in both French and English by Parliament and by the legislatures of Manitoba, New Brunswick, and Quebec.
-In Ontario, the legislature has enacted legislation providing for bilingual enactment and the equal authenticity of both language versions. The legislation of the territories follows the same model.
-In R v Daoust [2004], the SCC held that when one version of bilingual legislation is broader in scope than the other, the narrower version represents the shared meaning and should prevail unless there is evidence that the legislature intended the broader meaning.
(BUT most commentators would urge the courts to take a more nuanced/toned approach)
-In Daoust, the court acknowledged that the shared meaning is merely presumed and can be rebutted.
-In every case, the shared meaning must be tested against other indicators of legislative intent, both actual and presumed.
-Surprisingly, in Daoust, the court disregarded strong evidence that the legislature intended to enact the rule embodied in the broader English version. Presumably, the court was influenced by the fact that this was penal legislation and, therefore, to be strictly construed.
___________________Canada (Attorney General) v Mossop [1993] ___________________
Facts: In 1985, Brian Mossop, a gay man from Toronto, sought breavement leave from his employer, the Canadian federal government's Translation Bureau, to attend the funeral of his same-sex partner's father. His employer denied him leave under the collective agreement on the grounds that his partner was not "immediate family". Mossop took his employer before the Canadian Human Rights Commission. Sexual orientation was not a prohibited ground of discrimination at that time, so he argued that he had been discriminated against on the basis of his "family status", under section 3 of the Canadian Human Rights Act.
The Canadian Human Rights Tribunal found in his favour, but the government appealed to the Federal Court and the favourable finding was overturned. Mossop appealed to the Supreme Court, but it upheld the finding of the Federal Court.
SCC HELD: The majority held that absent a Charter challenge of the constitutional validity of the Canadian Human Rights Act, there was no grounds for a claim.
L'Heureux-Dube (dissent)
found that there was basis to read sexual orientation into the term "family status" within the Canadian Human Rights Act. She argued that the meaning of family should be read purposively and that given the growing number of non-traditional families there is a need to reconsider its meaning in light of these changes. She was joined on this point by McLachlin J. and Cory J., who both agreed that the relationship of Mossop and his partner fell within the scope of the term "family status".
-In this case, the problem before the court is the disputed meaning of certain language in s.3 of Canadian Human Rights Act.
-Both Lamer and L’Heureux-Dube address the question of legislative intent.
-When Parliament added the words “family status” to the English version of the Act in 1983, according to Lamer, it deliberately declined to extend the Act’s protection to sexual orientation, but according to L’Heureux-Dube, it chose to confer discretion of the Human Rights Tribunal to define “family statue” in any way that would achieve the purposes of the Act.
NOTE: suppose that Parliament declined to include same-sex couples within “family status” in 1983, and again in 1993 when the Mossop case was decided. Would it nonetheless be appropriate for the court to support the tribunal’s interpretation of this ecpression?
4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM:
v Chapter 8à “Constraints on Legislative and Administrative Action”
-This chapter explores the role that the judiciary plays in constraining legislative and administrative or executive action.
-In a democratic society, governmental actors face a wide range of constraints on their efforts to pursue their understanding of the public good.
-These constraints include:
limits on the support available from political allies;
the need to address criticism from political opponents;
the scrutiny of the media and affected interest groups;
the practical constraints imposed by limited financial resources, personnel, or information needed to pursue an initiative effectively; and
sometimes the requirement of cooperation from other levels of government, either domestically or internationally.
-These legal limits are likely to be especially important for individuals and minority interest groups who are unable to achieve their aims in the political or bureaucratic arena.
I. THE ROLE OF CONSTITUTIONAL JUDICIAL REVIEW IN A
DEMOCRATIVE SOCIETY
-Here, we consider the role that judicial review using the Constitution, plays in a democratic society.
-Even if one accepts the legitimacy of JR as a general proposition, it is still necessary to explore the appropriate limits of this role, and to consider how judges might attempt to reconcile this aspect of their role with our legal system’s general commitment to democratic government.
A. THE JUSTIFICATION FOR CONSTITUTIONAL JUDICIAL REVIEW
-The case below offers a principled account of constitutional supremacy and the role the judiciary plays in ensuring that the written Constitution prevails over ordinary legislation.
-Marshall’s argument in support of constitutional supremacy is compelling:
_________________________Marbury v Madision [1803]___________________________
In February 24, 1803, the Court rendered a unanimous (4-0) decision, that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct questions:
In deciding whether Marbury had a remedy, Marshall stated: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next described two distinct types of Executive actions: political actions, where the official can exercise discretion, and purely ministerial functions, where the official is legally required to do something. Marshall found that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provided him a remedy.
A federal court has a "special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" If a court does not have the power to hear a case, it will not issue dicta. Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one.
In analyzing the third question, Marshall divided the question further, asking if a writ of mandamus was the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought could issue from the Supreme Court. Concluding quickly that since a writ of mandamus, by definition, was the correct judicial means to order an official of the United States (in this case, the Secretary of State) to do something required of him (in this case, deliver a commission), Marshall devotes the remainder of his inquiry at the second part of the question: "Whether it [the writ] can issue from this court."
Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict.
This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:
“
It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions.
”
"In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid." Marbury never became a Justice of the Peace in the District of Columbia
-With the Canadian Constitution in 1982, the principle of constitutional supremacy was expressly enshrined in s.52(1) of Constitution Act 1982, which reads: “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 or effect”.
B. THE LIMITATIONS OF JUDICIAL REVIEW
1. The Issue of Justiciability
-In addition to providing the SCC with an opportunity to explore the principle of constitutional supremacy, the Operation Dismantle case also tested the limits of the role that courts play in weighting governmental measures designed to protect national security against the standards imposed by the Constitution:
_______________________Operation Dismantle v The Queen [1985] _________________
Facts: where the court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory.
It was argued that the use of cruise missiles by the US government increased the risk of nuclear war and that Canada's participation made Canada a more likely target.
HELD: Struck down claim.
Dickson (majority) –
struck down the claim on the basis that given the unpredictability of foreign policy decisions of sovereign nations, suggestion of an increase in danger can only be speculative. It would be impossible to prove a causal link between the testing and the increased threat.
Wilson J.
dismissed the use of the political question in Canadian law. She examined the jurisprudence behind the doctrine identified its basis in the core US constitutional principle of the separation of powers. She distinguished this from Canadian constitutional law where separation is not a core principle, but rather is only secondary. Instead, there is a foundation in overlap between the branches as demonstrated in the system of responsible government.
Wilson concludes that section 24 of the Charter requires judicial review of the executive branch of the government. For an issue to be justiciable the question must raise a legal issue. She further noted that exercise of the royal prerogative can be judicially reviewed under section 32 of the Charter
2. The Issue of Enforcement
-While Canadian judges accept the proposition that the Constitution is supreme and the corollary that it is their duty to interpret the Constitution and invalidate any legislation that is inconsistent with the Constitution, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions.
-Canadian courts are usually able to rely on the other branches of government for this support, but it is not inevitable that this will always be the case.
-Consider the following case where the SCC were split over the scope of the judicial power to grant a form of “structural injunction” as a remedy under s.24(1) of Charter for a breach of the executive branch of a positive Charter right.
-The trial judge had ordered the government of Nova Scotia to use its “best efforts” to build a French-language school or schools to comply with its duties under the minority language rights provision in s.23 of Charter. The judges had added to his order a requirement that the government provide him with periodic reports on its progress in this regard. A five-justice majority of the court concluded that this remedy came within a superior court’s authority under s.24. The minority argued that such an injunction usurped the role of the executive by placing the judiciary in the position of directing the implementation of law and government policy:
_____________Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] _________
Facts: Appeal by Francophone parents from a decision allowing an appeal by the Province of Nova Scotia from a portion of an order. The parents applied for an order directing the provision of French-language secondary schools in Nova Scotia. They presented evidence that assimilation was reaching critical levels, and of delay by the government in providing such schools. The judge found that the Government had failed to prioritize the parents' minority language education rights under section 23 of the Canadian Charter of Rights and Freedoms. He ordered the Province to provide school facilities by specified dates. The judge retained jurisdiction to hear reports by the Province regarding compliance with the order. The Province appealed the reporting order.
The Court of Appeal held that the order violated the common law concept of functus officio, and that the Charter did not grant jurisdiction to the court to enforce its remedies. The reports had been given to the judge as ordered and the schools had been built. As a result, the Province argued that the appeal was moot.
Issue: Having found a violation of s.23 of Charter and having ordered that the Province makes its best efforts to provide homogeneous French-language facilities and programs by particular dates, did the NS SC have the authority to retain jurisdiction to hear reports from the Province on the status of those efforts as part of its remedy under s.24(1) of Charter?
SCC HELD: Appeal allowed, and order restored. While the SCC split on what constitutes an appropriate usage of section 24(1), the majority favoured a section 24(1) with broad, flexible capabilities.
While the appeal was moot, it was appropriate for the Court to hear it. There was still an adversarial context, the decision would provide guidance on the remedies available under section 24 of the Charter and the determination of the issue was an adjudicative rather than an executive or legislative decision. The remedial power to fashion remedies under section 24 could not be abrogated by statute or common law. Under section 24(1), the court was permitted to craft any remedy it considered appropriate and just. The meaningful protection of Charter rights, particularly the enforcement of section 23 language rights, permitted the introduction of novel remedies. The remedy chosen by the trial judge was appropriate and just. He selected an effective remedy that meaningfully vindicated the appellants' section 23 rights, bearing in mind the serious rates of assimilation and the history of delay in the provision of French-language education. The order was a properly judicial one. The judge's retention of jurisdiction did not include any power to alter the disposition of the case, or interfere with any appeal rights. It was not unfair to the Government and was not so vaguely worded as to render it invalid.
[133] We would reiterate, at this point, the importance of clarity and certainty in the provisions of a court order. If the trial judge had precisely defined the terms of the remedy, in advance, then the ensuing confusion surrounding his role may not have occurred. Moreover, by complying with this essential element of fair procedure, he may have been able to avoid the constitutional breach of the separation of powers that followed.
NOTE: While construction had been completed by the time the minority language families appealed their case to the SCC, Iacobucci and Arbour, writing for the majority of the Court, declined to set aside the case for mootness. They went on to vindicate the position of Justice LeBlanc and overturn the Court of Appeal.
-Enforcement of the Constitution by the courts can present both practical problems and questions of principle.
-The following excerpt from the SCC’s decision in the Manitoba Language Reference illustrates the difficulty Canadian courts have faced in finding a principled (and constitutionally sensible) way to address the consequences of a sweeping legislative disregard of constitutional rules:
_______Reference re Language Rights Under Section 23 of Manitoba Act 1870 and______
_____________________ Section 133 of Constitution Act 1867 [1985]_________________
Pg 477-484
3. The Issue of Legitimacy
-The type of governmental intransigence described in the Manitoba Language Reference is very much the exception in Canada’s constitutional history.
-The more immediate concern for Canadian judges in exercising their mandate to uphold the Constitution is to identify principles that appropriately shape the exercise of this authority. This task has proved more challenging since the advent of the Canadian Charter in 1982.
-It is true that on the whole, the Charter, and the court’s interpretation of it, has been largely popular. Yet, because courts now regularly strike down (and reinterpret by “reading in”) parliamentary statues, they have sparked a wave of academic and political critiques that question, and sometimes denounce, their performance.
-Most criticisms of constitutional judicial review can be reduced to 2 core complaints:
(1) under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures...and the argument is that the courts have expanded their proper role of interpreting the Constitution (particularly the Charter), and have thereby unduly shrunk the zone of parliamentary supremacy
(2) is sparked by the substantive approach taken by the courts to particular rights. These are rights that may protect unpopular elements of society, such as people convicted of criminal offenses, or prompt decisions, such as protection for gays and lesbians, disliked by those holding particular political, social, or religious views.
NOTE: a core question lies at the heart of BOTH these complaints: in rendering their constitutional decisions, how much deference should courts show elected officials?
-In the following case from the SCC’s majority decision, Iacobucci uses the analogy of a dialogue to describe the relationship between courts and legislatures under the Charter:
_____________________________Vriend v Alberta [1998]__________________________
Facts: Appeal by Vriend and others from a decision of the Court of Appeal allowing Alberta's appeal from a decision allowing Vriend's application for a declaration that the Individual Rights Protection Act violated section 15(1) of the Charter by omitting sexual orientation as a prohibited ground of discrimination. Cross-appeal by Alberta. King's College fired Vriend because he was homosexual. The Alberta Human Rights Commission refused to hear his complaint. At the trial, the appellants successfully sought to add sections of the Act that did not specifically deal with the issue of discrimination in employment. The Court of Queen's Bench Judge read up the sections of the Act to include sexual orientation as a ground of discrimination. The Court of Appeal held that the Charter did not apply and if it did, the remedy of reading in was not appropriate.
HELD: The SC concluded that the Alberta’s legislature’s failure to include sexual orientation as a prohibited ground of discrimination in the Alberta Individual Rights Protection Act violated the appellants’ right to equality as protected by s.15 of Charter and that this action was not justified under s.1. The majority also concluded that the appropriate remedy for this violation was to “read in” sexual orientation as a prohibited ground of discrimination for purposes of the Act
Appeal allowed and cross-appeal dismissed. The appellants had standing to challenge the validity of all of the relevant provisions. There was a serious issue raised as to the invalidity of the legislation, the appellants had a genuine interest in its validity, and there was no reasonable and effective way to bring the validity of the disparate sections to the court. The Charter applied to challenges to an Act of the legislature that was underinclusive as a result of an omission. The Act regulated private activity but this did not preclude the application of the Charter. In its underinclusive state, the Act created a distinction that resulted in the denial of the equal benefit and protection of the law on the basis of sexual orientation, an analogous ground to those enumerated in section 15. The serious discriminatory effects of the omission reinforced that conclusion. The legislation was not saved by section 1. There was no evidence that the omission had a pressing and substantial objective. Reading sexual orientation into the Act minimized interference with its legitimate legislative purpose. “Reading in” or “striking out” would always involve interference with legislative intention but this was permissible given that the Alberta Legislature had stated that it intended to defer to the courts on this issue.
[1] CORY and IACOBUCCI JJ.:— In these joint reasons Cory J. has dealt with the issues pertaining to standing, the application of the Canadian Charter of Rights and Freedoms, and the breach of s. 15(1) of the Charter. Iacobucci J. has discussed s. 1 of the Charter, the appropriate remedy, and the disposition.
Iacobucci –
[134] To respond, it should be emphasized again that our Charter's introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy. Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms. That the courts were the trustees of these rights insofar as disputes arose concerning their interpretation was a necessary part of this new design.
[136] Because the courts are independent from the executive and legislature, litigants and citizens generally can rely on the courts to make reasoned and principled decisions according to the dictates of the constitution even though specific decisions may not be universally acclaimed. In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others' role and the role of the courts.
[137] This mutual respect is in some ways expressed in the provisions of our constitution as shown by the wording of certain of the constitutional rights themselves. ...
[138] As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a "dialogue" by some. ...
[139] To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.
[140] There is also another aspect of judicial review that promotes democratic values. Although a court's invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as that may be. In this respect, we would do well to heed the words of Dickson C.J. in Oakes, supra, at p. 136:
[142] Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter
-These comments deserve further elaboration on 2 points:
(A) Built-In Deference
-The Canadian Constitution preserves a huge swath of parliamentary sovereignty.
-As Iacobucci puts it, “the parliamentary safeguards” remain, despite the court’s “reading in” approach:
“Governments are free to modify the amended legislation by passing exceptions and defences which they feel can be justified under s.1 of the Charter...Moreover, the legislators can always turn to s.33 of Charter, the override provision, which in my view is the ultimate ‘parliamentary safeguard’”.
-Sec.1 of Charter provides that the rights contained within it are guaranteed, but then “subject to reasonable limits prescribed by law as can be demonstrably justified in a few and democratic society.” Therefore, rights in the Charter are NOT absolute.
-Moreover, many of the rights in the Charter (those enriched in ss.2 and 7-15) may be overridden by the exercise of democratic will, s.33, the “notwithstanding” provision which is abundantly available to any Parliament or provincial legislature. Therefore, s.33 preserves a large measure of parliamentary supremacy, though the political price exacted for explicitly overriding constitutionally protected rights has been sufficiently high that Canadian political leaders rarely have been willing to pay it.
(B) The Dialogue Model
-Vriend invokes a sort of “dialogue” between courts and legislatures.
-This “dialogue” was described by SC justice Bertha Wilson:
“The central feature of the Charter is that all branches of government – the legislatures, the executive and the judiciary – have an equal responsibility to carry out the Charter’s mandate, and we should concentrate on their reciprocal roles. If we do this, we see that a sort of “dialogue” is going on. First, the legislatures have to examine any legislation they are contemplating passing in order to ensure that they have discharged their responsibility of Charter compliance. Then, if that legislation, once passed, is called into question, the courts must ask themselves: Did the legislature discharge its responsibility to comply with the Charter when it passed this legislation? If the answer is yes, there is no problem. If the answer is no, then the courts are obliged to strike down the legislation, though in so doing they must identify its vitiating aspects as clearly as possible so that the legislature will be in a position to correct them. The matter then goes back to the legislature for the appropriate remedial action. The courts’ assessment of the legislation’s constitutionality is not the last word; it is merely one step in the process.”
-Other observers DISMISS this concept of “dialogue”. Professor Morton argues:
That putative dialogue “is usually a monologue, with judges doing most of the talking and legislatures most of the listening. They suggest that the failure of a government to respond effectively to judicial activism is a matter of personal courage, or the lack thereof, on the part of government leaders. The fault, if there is any, rests with the individuals. By contrast, I believe that legislative paralysis is institutional in character – that, in certain circumstances, legislative non-response in the fact of judicial activism is the “normal” response. When the issues in play is cross-cutting and divides a government caucus, the political incentive structure invites government leaders to abdicate responsibility to the courts – and this may be even more true in a parliamentary as opposed to a presidential system. If I am correct, the Canadian tradition of responsive government is in for a rough ride in our brave new world of Charter democracy”
-Views such as those expressed by Professor Morton have sparked a spited defence from some academic writers, and from judges themselves.
-At the 2004 Conference on the Law and Parliament, SC Justice Beverly McLachlin said:
Remarks of the Right Honourable Beverly McLachlin PC Respecting Democratic Roles (2004) (p.490)
“In the end, when we examine what is really being said, the claim fails that judges are overstepping the proper constitutional boundaries of their role”
“Each branch must discharge its role with integrity and respect for the proper constitutional role of the other branches. To do less is to diminish our democracy and imperil our future”
__________________________________________________________________________
-It should be notes, however, that even some members of the SCC have occasionally expressed the concern that the courts may be exceeding the proper boundaries of their role in constitutional adjudication.
-Consider LaForest’s partial dissent in the following case. Recall that in this case, the court was considering whether judicial independence – the constitutional origin of which flowed in part from unwritten principles – flowed, at least in part, from legally binding but unwritten constitutional principles:
____Reference re Remuneration of Judges of the Provincial Court of Prince Edward_____
_______________________________ Island [1997]________________________________
La Forest (dissent) –
La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in the text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with the power of the state."
La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own." This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on the Implied Bill of Rights, into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it.
In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee a type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As a judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance."
La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary." Judges simply asking whether government decisions seem reasonable would be enough.
III. DIFFERENT SORTS OF JUDICIAL REVIEW OF LEGISLATIVE ACTION
-Here, we consider 3 illustrations of judicial decisions concerning different types of constitutional challenges to elements of the Canadian Human Rights Act.
-These cases allow us to explore some of the characteristic features of legal challenges that make use of unwritten constitutional principles, federalism as embodied in the Constitution Act 1867, and the rights and freedoms enumerated in the Charter.
-A detailed exploration of the many constitutional rules and principles that constrain legislative action in Canada is beyond the scope of this book. It is, however, useful to offer an illustration of the ways in which these doctrines typically operate to limit the range of action open to Parliament and the provincial legislatures.
-The following decisions illustrate the types of arguments that have been mak=de in court to impose limits on Parliament’s authority to protect Canadians from discrimination through the Canadian Human Rights Act.
A. UNWRITTEN CONSTITUTIONAL PRINCIPLES
-As we saw in Patriation Reference [1981], in Canada and the UK, many important aspects of the constitutional order are not enforceable in the courts. These constitutional conventions depend on the political branches of government for their enforcement, though, in Canada, the courts may play an important role in identifying constitutional conventions.
-As we have also noted, however, Canadian courts have been willing to a limited extend, to recognize underlying constitutional principles that can be given full legal effect (see BC v Imperial Tobacco Ltd [2005]). One example of this type of principle is the principle of ‘judicial independence’ recognized in Reference re Remuneration of Provincial Court Judegs [1997]
-In the following case, the appellant unsuccessfully sought to invoke this principle in support of its argument that the Canadian Human Rights Tribunal was insufficiently independent and impartial to provide a fair hearing of the pay equity dispute that was before it.
(Notice that because the causes of the tribunal’s alleged lack of independence or impartiality were embedded in the Canadian Human Rights Act itself, it was necessary for the appellant to use a constitutional or quasi-constitutional argument to attack the legislation rather than simply advance an argument that adjudication by the tribunal would not satisfy the common law requirements of procedural fairness).
-That observation having been made, there is considerable overlap between the common law and the constitutional principles of independence and impartiality, and the court’s ruling is ultimately based on the conclusion that the scheme established by the Act is not unfair to the appellant:
________Bell Canada v Canadian Telephone Employees Association [2003] ___________
Facts: Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. Bell alleged that the Tribunal’s independence and impartiality were compromised by two powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”, and second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.
The Tribunal rejected Bell’s position and directed that the hearings should proceed. The Federal Court, Trial Division, allowed Bell’s application for judicial review, holding that even the narrowed guideline power of the Commission unduly fettered the Tribunal, and that the Chairperson’s discretionary power to extend appointments did not leave Tribunal members with a sufficient guarantee of tenure. The Federal Court of Appeal reversed that judgment.
HELD: Appeal dismissed.
Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle.
The Tribunal should be held to a high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights. Its main function is adjudicative and it is not involved in crafting policy. However, as part of a legislative scheme for rectifying discrimination, the Tribunal serves the larger purpose of ensuring that government policy is implemented. The standard of independence applicable to it is therefore lower than that of a court. The Tribunal’s function in implementing government policy must be kept in mind when assessing whether it is impartial
The guideline power does not undermine the independence of the Tribunal. The requirement of independence pertains to the structure of tribunals and the relationship between their members and members of other branches of government. It does not have to do with independence of thought. Nor does the guideline power undermine the Tribunal’s impartiality. The guidelines are a form of law. Being fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints. The guideline power is limited; and the statute and administrative law contain checks to ensure that it is not misused
The power to extend members’ appointments does not undermine the independence of Tribunal members. This question is settled by Valente. Nor does the power undermine the Tribunal’s impartiality. A reasonable person informed of the facts would not conclude that members whose appointments were extended were likely to be pressured to adopt the Chairperson’s views.
[1] This appeal raises the issue of whether the Canadian Human Rights Tribunal (the “Tribunal”) lacks independence and impartiality because of the power of the Canadian Human Rights Commission (the “Commission”) to issue guidelines binding on the Tribunal concerning “a class of cases”, and the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.
[3] In our view, Bell’s arguments are without merit. Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle. We would dismiss the appeal and have the complaints, finally, proceed before the Tribunal.
[31] This discussion shows that the Tribunal, though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights.
[40] Bell objects that Parliament has placed in one and the same body the function of formulating guidelines, investigating complaints, and acting as prosecutor before the Tribunal. Bell is correct in suggesting that the Commission shares these functions. However, this overlapping of different functions in a single administrative agency is not unusual, and does not on its own give rise to a reasonable apprehension of bias. As McLachlin C.J. observed in Ocean Port, supra, at para. 41, “[t]he overlapping of investigative, prosecutorial and adjudicative functions in a single agency is frequently necessary for [an administrative agency] to effectively perform its intended role”.
[50] Parliament’s choice was obviously that the Commission should exercise a delegated legislative function. Like all powers to make subordinate legislation, the Commission’s guideline power under ss. 27(2) and 27(3) is strictly constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend a “real likelihood of bias”
NOTE: the court’s reluctance to extend the constitutional principle of “judicial independence” into a broader principle of “adjudicative independence” that would embrace administrative tribunals as well as the courts.
B. THE CONSTITUTION ACT, 1867
-As already discussed, the Constitution Act 1867 establishes the basic institutional structure of the federal and provincial levels of government and assigns the respective role of the federal and provincial governments in the establishment of a system of federal and provincial courts and the appointment of judges to those courts.
-It also contains limited guarantees of minority rights in respect of the use of English and French languages in legislation and denominational schools.
-It terms of their potential to generate litigation, the most important features of this Act are the provisions of ss.91 to 95 that distribute power between the federal and provincial levels of government
-The division-of-powers litigation often involves arguments that a piece of legislation falls outside the jurisdiction of the legislature that enacted it.
-In other instances, the issue is not the validity of the particular piece of legislation, but whether a particular situation falls within the federal or provincial sphere of authority and therefore is governed by the relevant federal law, or provincial law.
-The the following case, the decision is an example of the latter type of division-of-powers case.
-If the employment activity that gave rise to the federal human rights complaint fell within the sphere of federal regulatory authority (as counsel for the Canadian Human Rights Tribunal successfully argued), then the dispute fell to be resolved under the Canadian Human Rights Act.
-But if the employment had fallen within the provincial legislative sphere (as the school council contended), then the Canadian Human Rights Act would not apply and the Canadian Human Rights Tribunal would have no jurisdiction to adjudicate the complaint.
-This would not necessarily mean that the complaints would have no legal recourse for the alleged discrimination against them, but any recourse that did exist would be under provincial human rights laws that would be administered by the relevant provincial human rights agency:
______________Qu-Appelle Indian Residential School Council v Canada______________
___________________(Canadian Human Rights Tribunal) [1988]____________________
Pg 505-509
NOTE: the importance that characterization of the relevant activity plays in Pinard’s reasoning. The resolution of federalism disputes typically turns on the way a court decides to characterize a particular law or activity. Characterization is important in Charter litigation as well; but as the Taylor case excerpted in the next section, the balancing of different interests often plays a more significant role in Charter cases than it does in federalism cases.
C. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
-The final type of constitutional litigation
-In the Taylor case below, the SC considered an argument that the provision of s.13(1) of the Canadian Human Rights Act that made it a discriminatory practice for a person to distribute hate messages by telephone unjustifiably infringed on freedom of expression protected by the Charter.
-Two aspects of the Taylor decision deserve particular attention for present purposes:
(1) The process of defining the substantive right protected by the relevant provision of the Charter.
-a number of parties took the position that hate speech did not deserve the protection of the freedom of expression guarantees of s.2(b) of Charter. Even though the majority decision written by Chief Justice Dickson upheld the legislation, the court rejected the suggestion that the freedom of expression guaranteed itself be restricted in this way.
(2) The relationship between substantive rights and the justification of limits on those rights under s.1 of Charter.
-Here the balancing of interests plays an important role, as does the argument that the legislation in question advances the societal interest in promoting equality recognized by s.15 of Charter.
_________________Canada (Human Rights Commission) v Taylor [1990] _____________
Facts: Mr. T continued his telephonic message of anti-Semitism in defiance of the court order, he was committed to prison for contempt. He appealed on constitutional grounds to SCC
SCC Held: the ban on telephone messages violated s.2(b). However, held that the ban was justified under s.1, so Mr. T had to stay in prison. The appeal should be dismissed. Section 13(1) of the Canadian Human Rights Act is constitutional. s. 13(1), which prohibits the communication of hate messages by telephone, does NOT violate the Charter.
Dickson C.J. (majority) –
finds that s. 13(1) violates the s. 2(b) guarantee of freedom of expression. The hate messages communicated by Taylor and the Western Guard Party constitute "expression" and s. 2(b) protects expression no matter what the content, as long as it is not communicated in violent forms.
However, the majority finds s. 13(1) is a justifiable limit on freedom of expression within the meaning of s. 1 of the Charter. Hate propaganda undermines the dignity and self-worth of minority racial and religious groups and erodes the tolerance and open-mindedness which are essential in a multicultural society. The purpose of s. 13(1) is to promote equality and to prevent the harm which hate propaganda causes to targeted groups. This is a pressing and substantial concern. It is of heightened importance because it is supported by other sections of the Charter, namely ss. 15 and 27, and by international human rights instruments to which Canada is signatory.
Having determined that the objective of s. 13(1) is of sufficient importance to warrant overriding a fundamental freedom, the majority considered whether the means are proportionate. To meet the Oakes test of proportionality, the state must show that 1) there is a rational connection between the impugned measure and the objective; 2) the measure impairs the Charter right as little as possible; and 3) the effects of the measure are not so severe as to represent an unacceptable abridgment of the right.
The majority finds that hate propaganda produces effects that are deleterious to the objective of equality of opportunity. Thus, there is clearly a rational connection between the restriction on communicating hate messages and the objective of promoting equality for racial and religious minorities. The majority rejects the argument that there is no rational connection because s. 13(1) does not, in fact, reduce hate propaganda. In combating discrimination, legislative efforts to suppress hate propaganda are not the only means available but they are considered an important weapon against intolerance by the international community.
Considering whether s. 13(1) impairs the right to freedom of expression as little as possible, the majority rejects a number of arguments advanced by the appellants and the intervener, the Canadian Civil Liberties Association. The Canadian Civil Liberties Association argued that the right is not impaired as little as possible because the words "hatred" and "contempt" are inherently vague and do not precisely define the scope of the discriminatory practices. Because of this, expression which does not contribute to discrimination may be caught. However, the majority finds that these terms are sufficiently precise, when read in light of the objects of the Act, to prevent unacceptable chilling of expressive activity.
The majority also rejects the argument that the absence of a requirement to show that there was an intent to expose a group to hatred makes it a serious and unnecessary impairment of the right to freedom of expression. The Canadian Civil Liberties Association argued that individuals who are oblivious of the consequences of their communications, or who intend to reduce discrimination, may be caught by s. 13(1) because it is only effects which need be considered. In answer, the majority rules that the important objective of s. 13(1) can only be achieved by ignoring intent and therefore the minimal impairment requirement of the Oakes test is satisfied.
In addition, the majority rejects the argument that s. 13(1) does not impair the right as little as possible because it interferes with telephone communication which is generally considered private. The majority of the Court finds that telephonic communication is a particularly effective means of conveying hate messages since the message is subject to no counter-argument in that particular communications context. Also, the Court finds that it is repeated communication of hate messages which is prohibited.
The majority concludes that the effect of s. 13(1) on the right to freedom of expression is not needlessly severe. The chill placed upon expression by a human rights statute is not the same as that caused by criminal law. A criminal conviction carries a degree of stigma and punishment, whereas the emphasis of human rights laws is on protection of the victim.
The year of imprisonment imposed on John Ross Taylor was not the result of the order of the Tribunal, but the result of the Federal Court's ruling that Taylor was in contempt of court when he ignored the order and continued to communicate hate messages. A cease and desist order which must necessarily precede a contempt order brings to the attention of the person the fact that his messages are likely to have a harmful effect. Continuing such messages, after such a ruling, cannot be said to occur without intent regarding the effect of the message.
The majority concludes that s. 13(1) is a reasonable limit on the right to freedom of expression within the meaning of s. 1.
The majority also rejects the appellants' argument that the cease and desist order violated the right to freedom of expression because it was too vague to allow the appellants to determine what expressive activity was prohibited. The order was a part of a lengthy decision which allowed for no doubt as to the subject matter which Taylor and the Western Guard Party were enjoined from communicating.
Finally, the appellants argue that the Tribunal was biased because it was appointed by the Canadian Human Rights Commission which investigated the complaints. This position relied on the 1985 decision of the Federal Court of Appeal in MacBain v. Canada (Human Rights Comm.) which decided that ss. 39(1) and 39(5) of the Canadian Human Rights Act were of no effect to the extent that they allowed the Commission to appoint the tribunal before which it appeared as the prosecuting party. In the present case, the issue of bias was not raised by the appellants until 1987, about eight years after the Tribunal's decision was released. The majority agreed with the reasoning of the Federal Court of Appeal on this question. The Federal Court of Appeal finds that since the appellants had made no effort to raise allegations of a reasonable apprehension of bias over a period of years, their inaction constituted a waiver.
II. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
-Here, we consider JR of administrative action using the common law. Here, we focus on the institutional relationships between courts and different administrative bodies, once again using examples drawn from federal human rights law.
-As Canadian courts have become more sophisticated in their approach of JR, they have become willing to take into account a number of other factors in determining the nature of their institutional relationship with administrative decision makers.
-These factors have become part of a “pragmatic and functional” standard of review analysis that has become the first step a court must take when reviewing an administrative decision.
(TODAY....SEE DUNSMUIR......)
-The court’s chief function in administrative JR is to police the executive and ensure that it does not act without lawful authority from the legislature (or the royal prerogative).
-The court’s approach to administrative JR has involved “a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power” (National Corn Growers [1990]).
-Specialized administrative bodies – and particularly the many specialized tribunals established by statute – may know their business better than do the generalist courts.
A. STANDARDS OF REVIEW
-The SCC’s decision in Dr. Q builds upon a series of cases that have established the modern approach to common law JR of administrative decisions.
-Some observers (C.U.P.E [2003] and Voice Construction Ltd [2004]) have criticized the standard of review approach set out in Dr. Q on the basis that it is overly complicated, too difficult to predict, and ill suited to many of the broad-ranging administrative decisions to which it is applied.
-It is also sometimes suggested that the distinction between the “reasonableness simpliciter” and “patently unreasonable” standards of review is unclear, and we would be better served by settling on 2 standards of review (“CORRECTNESS” and “REAOSNABLENESS”)
-TODAY............SEE DUNSMUIR.........where there now IS only 2 SofR
_________Dr Q v College of Physicians and Surgeons of British Columbia [2003]_______
Facts: Dr. Q was brought before the Discipline Committee of the British Columbia College of Physicians and Surgeons for having sexual relations with a patient. The patient had originally sought help in 1994 for depression. By 1995 the two began sexual relations. Dr. Q denied any misconduct. The Committee found that Dr. Q was guilty of infamous misconduct. The Committee based its decision on the weight of the patient's testimony, ignoring Dr. Q's testimony.
The Committee applied a standard of "clear and cogent evidence". Dr. Q applied for judicial review of the decision arguing that the wrong standard was applied.
HELD: Appeal allowed
McLachlin (majority) –
allowed the appeal and reinstated the order. She found that the standard of "clear and cogent evidence" was the appropriate standard.
On the issue of standard of review, McLachlin reiterated the three degrees of deference available, correctness, reasonableness simpliciter, and patent unreasonableness. She considered what degree of deference was required in these circumstances based on the four factors of the "pragmatic and functional approach".
On the whole, the Committee decisions were to be reviewed on a standard of "reasonableness".
Under the reasonableness standard, the reviewing judge's view of the evidence is beside the point.
Instead, the court should only ask whether there is some basis in evidence to support the conclusion.
Dunsmuir v New Brunswick (2008)
Facts: Appeal by a former employee with respect to his dismissal from his employment at the Department of Justice of the respondent Province of New Brunswick. During the course of his employment, the appellant was reprimanded on three separate occasions. He also received letters that included warnings that his failure to improve his work performance would result in further disciplinary action up to and including dismissal. The Regional Director and the Assistant Deputy Minister then came to the conclusion that the appellant was not right for the job, and a termination notice was sent to the appellant. Cause for termination was not alleged, and he was given four months' pay in lieu of notice. When the appellant's grievance was denied, he then referred the grievance to adjudication. During a preliminary ruling, the adjudicator found that he was authorized to assess the reasons underlying the respondent's decision to terminate pursuant to the Public Service Labour Relations Act. He then heard and decided the merits of the grievance, found that the appellant was dismissed without procedural fairness, and declared the termination void ab initio and ordered the appellant reinstated. On judicial review, the reviewing judge concluded that the correctness standard of review applied, that the adjudicator had exceeded his jurisdiction, and that his authority was limited to determining whether the notice period was reasonable. The reviewing judge quashed the reinstatement order. In dismissing the former employee's appeal, the Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator's authority under the Act was reasonableness simpliciter. On the issue of procedural fairness, it found that the appellant exercised his right to grieve, and thus a finding that the duty of fairness had been breached was without legal foundation.
HELD: Appeal dismissed. There were two standards of review: correctness and reasonableness. With respect to the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, a review of the cases revealed that any actual difference between them in terms of their operation was illusory. In this case, the standard of reasonableness applied, such that the decision maker should be given deference. Factors taken into consideration in favouring the reasonableness standard included: the Act contained a full privative clause, there existed a regime in which the decision maker had special expertise, and the nature of the legal question at issue was not one of central importance to the legal system or outside the specialized expertise of the adjudicator. However, while deference was to be given to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, it did not reach the standard of reasonableness. The adjudicator's reasoning process relied on a construction of the Act that fell outside the range of admissible statutory interpretations. The employment relationship between the parties in this case was governed by private law. Where a public employee was employed under a contract of employment, regardless of the employee's status as a public office holder, the applicable law governing dismissal was the law of contract, not general principles arising out of public law. A reasonable interpretation of the Act could not remove the respondent's right under contract law to discharge the appellant with reasonable notice or pay in lieu of notice. The decision to dismiss the appellant was properly within the respondent's powers and was taken pursuant to a contract of employment. In these circumstances, it was unnecessary to consider any public law duty of procedural fairness.
PRINCIPLE: the two variants of reasonableness review should be collapsed into a single form of “reasonableness” review. The result is a system of judicial review comprising two standards: correctness and reasonableness.
PRINCIPLE: “pragmatic and functional approach” is now referred to as the “standard of review analysis”.
(A) Reasonableness standard:
courts will give due consideration to the determinations of decision makers. Deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers.
(B) Correctness standard:
a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. Thus, the court must ask whether the tribunal’s decision was correct.
Method for selecting the appropriate standard of review (a.k.a. the “pragmatic and functional approach”:
(A) Reasonableness standard:
(1) The presence or absence of a privative/preclusive clause
o Because a privative clause is evidence of Parliament or a legislature’s intent of deference. However, the presence of a privative clause is not determinative.
(2) The nature of the question at issue;
o If the question is one of fact, discretion or policy, deference will usually apply automatically.
o If the questions are of mixed law and fact.
(3) The purpose of the tribunal as determined by interpretation of enabling legislation;
o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract.
(4) Expertise (in the application of a general common or civil law rule) will attract deference.
o Adjudication in labour law.
(B) Correctness standard:
· A question of law (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker).
· A question of jurisdiction.
o Constitutional questions regarding the division of powers (National Energy Board).
o Courts must substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v C.U.P.E.).
Because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future.
-Application of the standard of review to Dunsmuir:
(1) Privative clause existed (“every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court”.
(2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a reasonableness standard.
(3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators.
SCC Held: the appropriate standard is reasonableness.
Was the adjudicator’s interpretation unreasonable?:
-SCC Held: the adjudicator’s interpretation was unreasonable.
-The reasoning process of the adjudicator was deeply flawed.
The approach to the dismissal of public employees:
-The starting point should be to determine the nature of the employment relationship with the public authority.
-Following Wells, it is assumed that most public employment relationships are contractual.
-A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness.
-Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies (overruling Knight on this).
-HOWEVER, there may be occasions where a public law duty of fairness will still apply:
(1) Where a public employee is not protected by a contract of employment (judges, minister and others who “fulfill constitutionally defined state roles (Wells) or the terms of appointment expressly provide for summary dismissal or are silent).
(2) The dismissal of a teacher could only take place if the teacher was given three week’s notice of the motion to dismiss (MallochUK).
THEREFORE:
-Facts: D was employed by the Department of Justice for the Province of New Brunswick. He held a position under the Civil Service Act and was an office holder “at pleasure”. His probationary period was extended twice and the employer reprimanded him on three separate occasions. Eventually, his employer sent him a formal letter of termination, cause was explicitly not alleged, and given four months’ pay in lieu of notice.
-Dunsmuir’s argument: no reasons given for dismissal, no opportunity to respond to the concerns, termination was without notice, and the length of the notice period was inadequate.
-SCC Held: Since the appellant was a contractual employee, it was not necessary to consider any public law duty of procedural fairness. Contract law applied. Thus, the adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down.
B. THE STANDARD OF REVIEW IN OPERATION
-The next 2 decisions apply the “standard of review” analysis to determine the appropriate standard of review of 2 decisions, one made by the Canadian Human Rights Commission (MacLean) and one make by the Canadian Human Rights Tribunal (Quigley)
-In both of these instances, the agency rejected the human rights complaint that was before it.
-In both of these cases, the court dismissed the application for JR.
NOTE: the difference between dismissal of complaints at the commission stages and at the tribunal stage affects the standard of review analysis. The commission is responsible for investigating and attempting to resolve complaint but it does NOT adjudicate complaints or have the authority to make a final determination that the complaint is valid. If a complaint is forwarded to the tribunal by the commission, the tribunal normally DOES hold a formal hearing to adjudicate the complaint.
_______________MacLean v Canada (Human Rights Commission) [2003] ____________
[1] This is an application for JR in respect of the decision of the Canadian Human Rights Commission, wherein the applicant’s complaint against Marine Atlantic Inc. And Canadian Auto Workers (CAW) was dismissed.
[47] The Commission’s reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Borden-Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.
NOTE: the court addresses the arguments that the commission behaved in a procedurally unfair manner WITHOUT doing a separate “standard of review” analysis in respect of these arguments.
(the reason that no standard of review is necessary in these procedural fairness analysis situations is that the common law rules governing fair procedure already built in a degree of flexibility that takes into account the institutional setting in which the decision was taken)
_________________Quigley v Ocean Construction Supplies Ltd. [2004] _______________
Pg 538-541
What remedies are available where JR of administrative action is successful?
-To some extent, Parliament and provincial legislatures are entitled to choose what opportunities are available to persons affected by administrative decisions to seek relief from the courts
-Where rights of appeal to the courts are not made available, it is usually open to those affected by the administrative decisions to seek relief using a series of JR remedies, such as “certiorari” ,”prohibition,” “mandamus”, and “hebeas corpus”.
-It is important to administrative law theory that the courts generally NOT assume the power to make the decisions that have been granted by legislators to executive government.
-It is NOT, after all, the role of the courts to supplant the executive. Instead, the courts merely determine whether the executive has made a legal error in the exercise of its powers.
-THUS, WHERE A SUPERIOR COURT DECIDES TO INTERVENE IN RESPONSE TO AN APPLICATION FOR JR, ITS SUPERVISORY JURISDICTION IS GENERALLY EXERCISED IN A MANNER THAT HAS THE EFFECT OF NULLIFYING ACTS TAKEN PURSUANT TO DEFECTIVE DECISION MAKING, AND REQUIRING THE DELEGATES IN QUESTION TO START OVER.
5. RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE: SELECTED TOPICS:
Aboriginal Peoples and Treaty Rights s.91(2), s.25, s.35
FEDERAL LEGISLATIVE POWER
(a) Section 91(24)
(b) Indians
o Thus, two heads of power:
(1) a power over “Indians”, and
o This power may be exercised in respect of Indians only, whether or not they reside on, or have any connection with lands reserved for the Indians.
(2) a power over “lands reserved for the Indians”.
o This power may be exercised in respect of Indians and non-Indians so long as the law is related to lands reserved for the Indians.
o Thus is part of the Charter, but it does not create any new rights. It is an interpretative provision.
o This makes clear that the equality guarantee in s.15 does NOT invalidate aboriginal or treaty rights.
o The definition of “aboriginal peoples of Canada” includes:
- the Indian
- Inuit and
-Metis peoples of Canada
s.88, Indian Act – makes clear that provincial “laws of general application” apply to “Indians”.
o Status Indians = live on Indian reserves, have Indian Act privileges and within s.91(24)
o Non-status Indians = live on Indian reserves, NOT part of Indian Act. Within s.91(24)
o Metis People = can live on Indian reserves intermarriage between French-Canadian men and Indian women. May be within s.91(24)
o Inuit or Eskimo People = NOT covered by Indian Act. Do NOT live on Indian reserves. Can be included in s.91(24).
Therefore, Non-Status Indians, Metis, Inuit/Eskimo people are NOT govern med by the Indian Act but by s.91(24).
Federal Indian Act – defines the term “Indian” for the purposes of that Act, and establishes a register to record the names of qualified persons (about 700,00 status Indians in Canada). Persons within the statutory definition of the Act are known as “status Indians”.
o Non-status Indians, which number about 200,000, are “Indians” within the meaning of s.91(24), although they are not governed by the Indian Act.
(c) Lands Reserved for Indians
o S.91(24) = federal Parliament legislative power over “land reserved for the Indians”
(d) Canadian Bill of Rights
s.1(b), Bill of Rights – guarantee of “equality before the law”, and specifically forbids “discrimination by reason of race”.
o The federal Indian Act appears on its face to offend the guarantee of equality in the Bill of Rights.
R v Drybones (1969) – SCC held the use of the racial classification “Indian” in s.94 of the Indian Act, which made it an offence for an Indian to be intoxicated off a reserve, violated the equality guarantee in the Bill of Rights.
o This decision case doubt on all of the provisions of the Indian Act, and on the whole principle of a special regime of law for Indians.
(e) Charter of Rights
Corbiere – SCC struck down the provision in the Indian Act that made residence on the reserve a requirement for voting in band elections because the distinction between Indians who lived on the reserve (and could vote) and Indian who did not was a breach of s.15.
(f) Treaties
o Treaties within OTHER counties have no effect on Canadian law unless they are implemented by Federal legislation
o Before 1982, treaties entered into within Indian tribes were prohibited by the Federal law from performing their treaty outside the season required by Federal law
o Today, s.35 gives constitutional protection for treaty rights and international treaties
PROVINCIAL LEGISLATIVE POWER
(a) Application of provincial laws
o The general rule: is that provincial laws apply to Indians and lands reserved for the Indians, so long as the law is in relation to a matter coming within a provincial head of power.
R v Hill (1907) – Ontario CA held that a provincial law confining the practice of medicine to qualified physicians applied to Indians. The offence did not take place on a reserve, but would have been the same if it had.
R v Francis (1988) – SCC held that provincial labour law applied to a shoe-manufacturing business located on a reserve which was owned by Indians, employed Indians and which had been funded by the Department of Indian Affairs.
5 exceptions to general rule that provincial laws apply to Indians and lands reserved for Indians:
(i) Singling out
o If provincial law singled out Indians or Indian reserves for special treatment, then the law is invalid
(ii) Indianess
o A provincial law that affects “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians” will be inapplicable, even though the law is one of general application that is otherwise within provincial competence.
Paul v BC (2003)
o Issue: The defendant, an Indian, claimed that he was exercising an aboriginal right when he cut down trees in a provincial forest in apparent violation of the Code. He argued that the province could not empower an administrative tribunal to make a ruling about the existence or applicability of aboriginal rights.
o SCC Held: court rejected this argument on the basis that adjudication was distinct from legislation and since the function conferred on the Forest Appeals Commission included the power to decide questions of law, the Commission’s decision was upheld.
(iii) Paramountcy
o If a provincial law is inconsistent with a provision of the Indian Act (or any other federal law), the provincial law is rendered inoperative by the doctrine of federal paramountcy.
(iv) Natural Resources Agreements
o Provincial law CANNOT deprive Indians of this right to game and fish for food (which is protected by the 3 prairie provinces)
(v) s.35
o Aboriginal and treaty rights, since 1982, have been protected by s.35.
o Therefore, constitutional status given to aboriginal and treaty rights
o Therefore, protected from impairment by provincial law
SECTION 88 OF INDIAN ACT
(a) Text of s.88
o S.88 Indian Act = provincial laws of general application to “Indians”. This is in operation as a federal incorporation of provincial laws to make provisional laws applicable as part of the federal law.
(b) Laws of General Application
Dick v The Queen [1985]
o PRINCIPLE: Provincial laws NOT affecting ‘Indianness’, but which apply to Indians of their own force, are NOT within s.88 I.A
o BEETZ à s.88 I.A applies to provincial laws that affect ‘Indianness’ by impairing the status of capacity of Indians. Therefore, provincial laws that can be applied to Indians, without touching their ‘Indianness’, will apply to Indians of their own force.
o THEREFRE PROVINCIAL LAWS OF GENERAL APPLICATION CAB INFRINGE ON ABORIGINAL RIGHTS. BUT S.88 DOES NOT ALLOW PROVINCIAL LAWS OF GENERAL APPLICATION TO EXTINGUISH ABORIGINAL RIGHTS!
(c) Paramountcy Exception
o Any conflict between statute and a provisional law of general application is to be resolved in favour of federal statute.
o BUT THE EXCEPTION IS: Exception to s.88 = the “paramountcy doctrine” continues to apply to provincial laws of general application despite the adoption of federal statute. Therefore, applies only where there is this contradiction.
o Only provincial laws that affect “Indianness” will be subject to this paramount exception
i.e. provincial laws that do NOT affect ‘indianness’, apply to Indians in their own force (not through s.88), and they are subject to the rule of paramount (not the expanded rule of s.88)
(d) Treaty Exception
o Any conflict between a treaty made within Indians and a provincial law of general application, MUST go in favour of the treaty provision
NATURAL RESOURCES AGREEMENTS
o Alberta, Saskatchewan and Manitoba, limits provincial competence by making laws applicable to Indians within the “Natural Resources Agreement”
ABORIGINAL RIGHTS
(a) Recognition of aboriginal rights
o s.35 = gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
*Guerin v The Queen [1984]
o PRINCIPLE: aboriginal title survived European settlement and assumption of souverighnty by the Crown. Aboriginal title to land gave rise to a fiduciary duty by the Crown to deal within the land for the benefit of Indians.
o SCC HELD: aboriginal title of the Musqueaam Indian Band to land in B.C was recognized. The fiduciary duty had been broken, so the Indians received damages
R v Sparrow [1990]
o PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
o HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o THEREFORE, BOTH CASES RECOGNIZE A FIDUCIARY OR A TRUST-LIKE OBLIGATIONS BY THE CROWN! AND BOTH CASES CONFIRM ABORIGINAL RIGHTS EXIST AT COMMON LAW
(b) Definition of aboriginal rights
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
R v Van der Peet (1996)
o PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
o Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
o SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
Van der Peet applied in:
R v Gladstone (1996) – SCC held the claimed aboriginal right, which was to sell herring spawn on kelp, was established. Evidence showed that, before contact, the Heiltsuk people habitually sold large quantities of herring to other Indian tribes. The purpose of this activity was not to dispose of surplus food (as in Van der Peet); now was it incidental to social and ceremonial traditions (as in Smokehouse). The trade in herring spawn was “a central and defining feature of Heilstuk society”.
Mitchell v Minister of National Revenue (2001) – SCC rejected the claim by the Mohawk people of Akwesasne to an aboriginal right to bring goods purchased in the U.S. across the St. Lawrence River (the international border) into Canada without paying customs duty on the goods. Evidence was no sufficient, at most, the occasions of trade were few, and participation in northernly trade was “not a practice integral to the distinctive culture of the Mohawk people”.
R v Sappier (2006) – harvesting of wood for domestic uses was integral to the distinctive culture.
By definition, Van der Peet, could not apply to the Metis since their society was formed after European contact (with Europeans). However, this has been accommodated for:
R v Powley (2003) – for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to ‘the time of effective European control”. Apart from this shift in time, the same Van der Peet definition applied.
(c) Aboriginal self-government
R v Pamajewon (1996)
o PRINCIPLE: aboriginal right of self-government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society.
o SCC held: that gambling was not an integral part of the distinctive cultures of the First Nations, and therefore, they had no aboriginal right to regulate gambling. The defendants were properly convicted of breaching the gaming provisions of the Criminal Code.
NOTE:
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
1. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
2. A.T confers exclusive right to land and occupation of land
3. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
4. A.T can only be held communally by aboriginals as members of aboriginal nation
5. At is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
(e) Extinguishment of Aboriginal Rights
o Aboriginal rights, including title, can be distinguished in 2 ways:
1) By surrender: voluntarily surrender their aboriginal rights to the crown
2) By constitutional amendment: it would be in breach of the Crown’s fiduciary duty to aboriginal people to proceed with an amendment affecting aboriginal people and rights without their active participation)
TREATY RIGHTS
(a) Introduction
(b) History
(c) Definition of treaty
o It is an agreement between the Crown and an aboriginal nation with the following characteristics:
(1) Parties
(2) Agency
(3) Intention to create legal relations
(4) Consideration
(5) Formality
Simon v The Queen (1985)
o Issue: whether the legal recognition should be given to a “peace and friendship” treaty signed in 1752 by the governor of Nova Scotia and the Chief of the Micmac Indians. The document purported to guarantee to the Indians “free liberty of hunting and fishing as usual” in the treaty area. Thus, does the “treaty” fall within the meaning f s.88 of Indian Act?
o SCC Held: this was a valid treaty, which, by virtue of s.88 of the Indian Act, exempted the Micmac defendant from the game laws of Nova Scotia.
o A treaty MUST have an intention to creatE obligations that are mutually binding. Therefore, the surrender of aboriginal rights is NOT a requirement of a valid treaty. THERE MUST BE CONSIDERATION MOVING FROM INDIAN SIDE AND THE CROWN SHOULD BE HELD TO ITS SIDE OF THE BARGAIN
Nowegijick v The Queen (1983) – It is a well established principle of interpretation that “treaties and statutes relating to Indians should be liberally construed and doubtful expression resolved in favour of the Indians”.
o Because the Indians were not in a position to fully understand the Treaty, unequal bargaining rights between the Crown and the aboriginal people.
(d) Interpretation of Treating Rights
o Between the Crown and the aboriginal nation, they should be liberally construed and doubtful expressions resolved in favour of Indians
o Marshall 1 à Marshall 2 à Marshall 3
Marshall 3 (2005) – Logging was not a traditional Mi’Kmaq activity in 1760. And, while treaty rights are not frozen in time, modern logging activity could not be characterized as the natural evolution of the minor trade in wood products. The defendants had no treaty right to cut down trees for commercial purposes without a licence.
HELD: while modern eel fishing was a logical evolution of trading activity, logging was not a traditional activity for Mi’Kmaq activity. Therefore, NO TREATY RIGHTS to cut down trees for commercial purposes without a licence
SEE Morris
o Progressive interpretation of an Indian treaty:
R v Morris (2006) – SCC held “the use of guns, spotlights and motor vehicles is the current state of the evolution of the Tsartlip’s historic hunting practices”: these modern ways of hunting “do not change the essential character of the practice, namely, night hunting with illumination”. The practice was protected by the treaty, and the two accused were free.
(e) Extinguishment of rights
o Treaty rights and aboriginal rights may be extinguished in two ways:
(1) by voluntary surrender to the Crown, and
(2) by constitutional amendment.
o Evidence of longstanding non-exercise of treaty rights does not cause an extinguishment.
THE NEED FOR CONSTITUIONAL PROTECTION
o
SECTION 35
(a) Text of s.35
s.35 – gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
(b) Outside Charter of Rights
o The definition of “aboriginal peoples of Canada” includes “the Indian, Inuit and Metis peoples of Canada”.
o s.35 is located outside the Charter (which occupies ss. 1 to 34) and the rights referred to in s.35 are not qualified by s.1, nor are they subject to legislative override under s.33, nor are the rights effective only against governmental action, as stipulated in s.32.
o On the other hand, the disadvantage is that the rights are not enforceable under s.24, a provision that permits enforcement only of the Charter.
(c) “Aboriginal peoples of Canada”
o Indian, Inuit, and Metis people, and Non-Status Indians (under s.35(2))
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(1) Self-identification of Metis community
(2) Ancestral connection must be traced
(3) Community acceptance and member of modern Metis community
(d) “Aboriginal and Treaty Rights”
(e) “Existing”
o S35 = protects existing aboriginal rights and treaty rights does not exclude tights that coame into axistance after 1982 because such rights could only be treaty rights
o s.35(3) – For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreement or may be so acquired.
o The last phrase, “or may be so acquired”, makes clear that treaty rights are acquired after 1982 are protected by s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o The effect of the word “existing” in s.35 was to exclude from constitutional protection those rights that had been validly extinguished before 1982.
o The court attributed an expansive or liberalizing effect to the word “existing”: the word “existing” meant that the guaranteed rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. For example, hunt and fish by bow and arrow where not limited to these means and a right to trade in the form of barter in modern times extend to the use of currency, credit, etc.
(a) “Recognized and Affirmed”
Sparrow:
o The rights protected by s.35 are not absolute, they are subject to regulation by federal laws, provided the laws met a standard of justification like that of s.1. A justified impairment would have to pursue an objective that was “compelling and substantial”.
o For example, the conservation and management of a limited resource would be a justified objective, but “the public interest” would be too vague to serve as a justification.
o In the Sparrow case itself, the court did not feel able to decide whether the net-length restriction would satisfy the standard of justification.
o SO, IF A LAW HAD THE EFFECT OF IMPAIRING AN EXISTING ABORIGINAL RIGHT, IT WOULD BE SUBJECT TO JUDICIAL REVIEW TO DETERMINE WHETHER IT WAS A JUSTIFIED IMPAIRMENT
o Justified Impairment = must pursue an objective that is “compelling and substantial”
i.e. if a sufficient objective is found, then the law must employ a means that were consistent with “special trust relationship” between government and aboriginal people
R v Gladstone (1996)
o Issue: whether restrictions on the sale of herring spawn on kelp could be justified in their application to aboriginal people who had an aboriginal right to sell the spawn.
o SCC Held: applied Sparrow test that holders of aboriginal rights would have to be given priority in access to the resources such as fishery.
o BUT the court held that this was not acceptable for a right without internal limitations. The Sparrow requirement of justification did NOT require aboriginal priority, but could be satisfied by “objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups”
o The court conclude that there was insufficient evidence to determine whether the regulatory scheme for the sale of herring spawn was justified, and remitted the issue to a new trial.
NOTE:
è This ruling on justification seems to be a departure from the Sparrow’s instance on “compelling and substantial” objectives.
è This runs the risk that later courts will not impose the strict standards of justification on regulatory schemes that derogate from those aboriginal or treaty rights that are not limited by their own terms.
(b) Application to Treaty Rights
R v Badger [1996]
o Sparrow only concerned aboriginal rights. But because s.35 applied to treaty rights and aboriginal rights, the doctrine of Sparrow therefore applies to BOTH treaty rights AND aboriginal rights
o HOGG à the standard of justification for a law impairing a treaty right should be very high indeed!
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
“Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DO NOT NEED TO SATESFY THE SPARROW TEST
(c) Application to Extinguishment
o Sparrow = s.35 to protect aboriginal and treaty rights from extinguishment by federal legislation
o Therefore, the Sparrow Test of Justification, if satisfied, would SAVE a federal law that purported to REGULATE an Aboriginal or treaty right....but not a federal law that purported to extinguish the right
(d) Application to Provincial Laws
o What effect does s.35 have on provincial laws?
R v Badger [1996]
“Provincial law was capable of infringing a treaty right, provided that the law could satisfy the Sparrow Test of Justification”
o HOWEVER, unsatisfactory because of s.88, where a provincial law could impair an aboriginal right
(e) Duty to consult aboriginal people
o S.35 = gives constitutional protection to special relationships between the Crown and the Aboriginal People
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
o Obligations are ONLY on the Crow
o Duty to consult extends to the Crown in the right of the federal government of Canada
o The Crown has the responsibility for eh aboriginal rights and affairs to match the federal legislation of s.91(24).
o In Haida, it was the PROVINCIAL Crown land that was the subject of the aboriginal claim. So the court held that PUBLIC LANDS OF THE PROVINCE WERE SUBJECT TO ABORIGINAL INTERESTS. The duty to consult extended to the Crown’s right of the province
o s.35(1) – declares that the federal and provincial governments “are committed to the principle” that, before any amendment is made to s.91(24) or to s.35 or to s.25, a constitutional conference will be convened to which representative of the aboriginal peoples will be invited to participate.
o Through s.35(1), the aboriginal peoples have gained entry to the constitutional amendment process.
SECTION 25
o s.25 – part of the Charter, but it does not create any new rights. It is an interpretative provision, included to make clear that the Charter is not to be construed as derogating from “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”
o In the absence of s.25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s.15 (equality).
Corbiere v Canada (1999) – SCC struck down the residence requirement (in order to vote, an Indian must live on the reserve) under s.15 on the basis that it discriminated against those Indian band members who lived off the band’s reserve.
o s.35 affords Constitutional protection from legislative impairment for the rights it covers. Therefore, it leaves s.25 with little work to do.
o But as Corbiere suggested: “The class of rights saved by s.25 is probably wider than the class of rights guarantee by s.35 because s.25 is “other” rights of freedoms (protected from the challenge of s.15)...
S. 25 is NOT qualified by the word “existing”...”
SECTTION 35.1 CONSTITUION
o Aboriginal people fear that their constitutional protection is still vulnerable, even within s.91(24), s.25, and s.35.
o Therefore, s.35.1 was added
o S.35.1 = the federal and provincial government are committed to do the principle that, before an amendment is made to s.91(24), or s.35 or s.25, a constitutional conference will take place with representatives of the aboriginal people
o REMEMBER:
è s.15 only has a limited role to play with respect to aboriginal peoples, since s.35 “special status” applies for them, which is recognized by s.25 of Charter.
è In addition, the federal Parliament, under s.91(24) gives effect to aboriginal or treaty rights, are NOT affected by s.15 of Charter.
ADDITIONAL CASES FOR SECTION 5:
Aboriginal Rights
__________________________________R v Sparrow [1990]_______________________________
PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
___________________________________R v Van der Peet (1996)__________________________
PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
___________________________________R v Sappier (2006)_______________________________
Facts: Accused charged with break and enter of a dwelling-house with intent to commit an indictable offence -- Accused admitted all elements except that the house was a dwelling-house -- Accused and others entered house under construction and removed cupboards -- Others later burned down house -- Owner of house lived in another house -- Owner started building the house in 2000 -- The house design had bedrooms, a bathroom, a kitchen and a living room -- At time of the offence, the house was almost completed -- The roof, outer layer, inner walls, electrical and plumbing were finished -- The owner still needed to replace doors and windows destroyed by vandals and to finish ceiling, fixtures, sink, toilet and floors -- Owner planned to move in with girlfriend and daughter
HELD: Accused convicted of break and enter into a place other than a dwelling-house with intent to commit an indictable offence -- The house was not a dwelling-house at the time of the offence -- Owner intended house as a dwelling-house, but the house was never actually occupied as dwelling-house in the past -- House was not kept as a dwelling-house.
NOTE: R. v. Sappier; R. v. Gray ARE TOGETHER!
__________________________________R v Gray [2006]____________________________
Facts: Appeals by the Crown from the acquittal of Sappier, Polchies, and Gray on charges of unlawful possession or cutting of Crown timber under New Brunswick's Crown Lands and Forests Act. Two of the respondents, Sappier and Polchies, were Maliseet, while the third, Gray, was Mi'kmaq. All three argued that they possessed an aboriginal and treaty right to harvest timber for personal use. The logs had all been taken from lands traditionally harvested by the respondents' respective First Nations. Those taken by Sappier and Polchies were to be used to construct Polchies' house and for community firewood, while those taken by Gray were to be used to fashion furniture. The respondents were acquitted at trial. The acquittals of Sappier and Polchies were upheld by both the Court of Queen's Bench and the Court of Appeal, while Gray's acquittal was set aside by the Court of Queen's Bench but restored on appeal. The Crown now appealed to the Supreme Court of Canada.
HELD: Appeals dismissed. The respondents had established an aboriginal right to harvest wood for domestic uses. The evidence in these cases established that wood was critically important to the pre-contact Maliseet and Mi'kmaq, and it could be inferred from the evidence that the practice of harvesting wood for domestic uses was significant, though undertaken primarily for survival purposes. A practice of harvesting wood for domestic uses undertaken in order to survive was directly related to the pre-contact way of life and met the "integral to a distinctive culture" threshold. The nature of the right was not to be frozen in its pre-contact form, but rather determined in light of present-day circumstances. The right to harvest wood for the construction of temporary shelters was to be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. The site-specific requirement was also met. The Crown had not discharged its burden of proving the aboriginal right had been extinguished by pre-Confederation statutes. The legislation relied upon by the Crown as proof of extinguishment was primarily regulatory in nature, and the regulation of Crown timber through a licensing scheme did not meet the high standard of demonstrating a clear intent to extinguish the aboriginal right to harvest wood for domestic uses.
___________________________________R v Powley [2003] _________________________
Facts: Appeal by the Crown from the acquittals of the accused, Steve and Roddy Powley. The accused were members of a Métis community. They were acquitted of unlawfully hunting moose without a hunting licence and knowingly possessing game hunted in contravention of Ontario's Game and Fish Act. The trial judge found that members of the Métis community in the accused's area had an aboriginal right to hunt for food by virtue of the Constitution Act. The judge further found that the hunting legislation infringed that right without justification. The acquittals were upheld by the Superior Court of Justice and the Court of Appeal.
HELD: Appeal dismissed. The trial judge's finding of the existence of a historic Métis community and a contemporary Métis community in the accused's area was supported by the record. The trial judge correctly found that the accused were members of that Métis community. The fact that their ancestors had resided on a reserve for a period of time did not negate their Métis identity. Ontario's hunting legislation infringed the Métis aboriginal right, as it failed to recognize any Métis right to hunt for food. The infringement was not justified by conservation concerns, since even if the moose population were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs.
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(4) Self-identification of Metis community
(5) Ancestral connection must be traced
(6) Community acceptance and member of modern Metis community
_______________Haida Nation v British Columbia (Minister of Forests) [2004]__________
Facts: Application by Haida Nation for the disclosure of information relating to Weyerhaeuser's logging operations on the Queen Charlotte Islands (Haida Gwaii). In 2002, Haida Nation successfully appealed a decision dismissing its application for judicial review of a decision by the Ministry of Forests approving the transfer of a tree farm licence from McMillan Bloedel to Weyerhaeuser. The appellate court held that the Crown and Weyerhaeuser both owed a duty to Haida Nation to consult with them and to attempt to arrange accommodations with respect to the tree farm licence, and ordered the parties to apply for necessary orders pending the conclusion of the proceedings. In the first part of its application, Haida Nation sought the production of Weyerhaeuser's reports relating to the location of red and yellow cedar that might be suitable for its cultural use. Weyerhaeuser argued that its only obligation was to ensure that the Crown consulted with Haida Nation, and that Haida Nation had not established the Crown's constitutional duty to consult. In the second part of its application, Haida Nation sought to be consulted on Weyerhaeuser's proposed transfer of the tree licence to a third party. In 2002, when the licence was transferred to Weyerhaeuser, the legislation required consultation and accommodation of the aboriginal interest. The Court of Appeal's remedy for Haida Nation having been deprived of this entitlement was to require Weyerhaeuser to participate with the Crown in the consultation and accommodation. In 2003, the legislation was amended to no longer require the Crown's consent regarding the transfer of a tree farm licence. Weyerhaeuser argued that as a licensee could now alienate its interest without government involvement, the Crown had no duty to consult with aboriginal groups, and it had no duty to co-operate with the Crown. It also argued that securities law in Canada and the US prevented it from disclosing its business plans to Haida Nation.
HELD: Application allowed in part. The court adjourned the first part of Haida Nation's application. There was no necessity for an order at this time. Weyerhaeuser had provided the Crown with access to the data in its reports, and the Crown was prepared to share this with Haida Nation. The court allowed the second part of the application. The licence held by Weyerhaeuser had a fundamental legal defect because the Crown failed to consult Haida Nation before effecting the transfer. If Weyerhaeuser sold its interest to a third party, it could not transfer title without this defect. Any transferee of the title would also be subject to a duty of consultation and accommodation. The disclosure sought by Haida Nation would not violate any securities laws because there was no danger of insider trading in this situation.
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
________Taku River Tlingit First Columbia (Project Assessment Director) [2004]_________
Facts: Since 1994, a mining company has sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation ("TRTFN"), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the company's plan to build a road through a portion of the TRTFN's traditional territory. The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. The chambers judge concluded that the decision makers had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN's concerns. She set aside the decision and directed a reconsideration. The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN.
HELD: The appeal should be allowed.
The Crown's duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown, which derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1) of the Constitution Act, 1982. The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
The Crown's obligation to consult the TRTFN was engaged in this case. The Province was aware of the TRTFN's title and rights claims and knew that the decision to reopen the mine had the potential to adversely affect the substance of the TRTFN's claims. The TRTFN's claim is relatively strong, supported by a prima facie case, as attested to by its inclusion in the Province's treaty negotiation process. While the proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title, the potential for negative derivative impacts on the TRTFN's claims is high. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation. It is impossible, however, to provide a prospective checklist of the level of consultation required.
In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate. The TRTFN was part of the Project Committee, participating fully in the environmental review process. Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN. Finally, it is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN.
Aboriginal Title:
-This is a famous leading decision of the SCC where the Court made its most definitive statement on the nature of aboriginal title in Canada:
_____________________Delgamuukw v British Columbia [1997] ____________________
Facts: the Appellants, chiefs of the Gitksan or Wet’suwet’en tribes, claimed aboriginal title – that is, an interest in land that arises by virtue of an aboriginal group’s historical association with those lands – over separate portions of 58,000 sq km in British Columbia. The province of BC counterclaimed for a declaration that the appellants have no right or interest in the territory or, alternatively, that the appellants’ cause of action ought to be for compensation from the government of Canada. He went on to discuss the decisions at trial and at the BC CA and matters related to factual findings at trial.
SCC Held: Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers.
The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.
The Test for the Proof of Aboriginal Title:
In order to make out a claim for aboriginal title, the aboriginal group asserting the title MUST satisfy the following criteria:
(1) The land must have been occupied prior to sovereignty;
(2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
(3) At sovereignty, that occupation must be exclusive
For Aboriginal Title
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
6. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
7. A.T confers exclusive right to land and occupation of land
8. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
9. A.T can only be held communally by aboriginals as members of aboriginal nation
10. At is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
__________________ Tsilhqot'in Nation v British Columbia [2007]____________________
Facts: Action commenced by Chief Roger William in his representative capacity as Xeni Gwet'in Chief on behalf of all Xeni Gwet'in and all Tsilhqot'in people. The plaintiff sought declarations of Tsilhqot'in title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach'ed (Brittany Triangle) and the Trapline Territory. The plaintiff also sought declarations of Tsilhqot'in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot'in Aboriginal right to trade in animal skins and pelts. The Tsilhqot'in people were a distinct Aboriginal group who had occupied the Claim Area for over 200 years. The action was provoked by proposed forestry activities in Tachelach'ed and the Trapline Territory.
HELD: Action allowed in part without prejudice. The Court was unable to make a declaration of Tsilhqot'in Aboriginal title in the context of the proceedings. However, the Court offered the opinion that Tsilhqot'in Aboriginal title did exist within and outside the Claim Area. Aboriginal title land was not "Crown land" as defined by provincial forestry legislation. The provincial Forest Act thus did not apply to Aboriginal title land. Tsilhqot'in people had an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial and cultural uses. Tsilhqot'in people had an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood. Land use planning and forestry activities had unjustifiably infringed Tsilhqot'in Aboriginal title and Tsilhqot'in Aboriginal rights. The claim for damages was dismissed without prejudice to a renewal of such claims as they might pertain to Tsilhqot'in Aboriginal title land.
“9. ABORIGINAL TITLE
a. Nature of Aboriginal Title
473 The origin and nature of Aboriginal title in Canada has been the subject of great debate both inside and outside the courts. Canadian courts began to outline and define Aboriginal title (also referred to as Indian title or native title) in St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46 (P.C.). That case arose out of a timber licensing dispute in the Province of Ontario and did not directly involve Aboriginal people. In 1873 the Saulteaux Tribe ceded certain lands to the federal Crown when they entered into Treaty 3. The company claimed it had a right to log on those lands pursuant to a licence issued by the Canadian government. The Province argued it had the sole authority to license pursuant to s. 109 of the British North America Act.
474 The case was ultimately decided by the Privy Council who made several significant findings. The first was that Indian title to lands in Ontario originated from the Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1. Lord Watson, speaking for the Court, expressed the view that the land "tenure of the Indians was a personal and usufructuary right, dependant upon the good will of the Sovereign": St. Catherine's Milling, p. 54.
475 A usufruct is a legal right to use, benefit from and derive profit from property belonging to another person, provided the property is not damaged or altered in any way. According to this concept of title, the Aboriginal occupants have the right to live on the lands but they are prevented from doing anything that would affect the underlying title held by the Crown.
476 The Privy Council also found that the Crown "all along had a present proprietary estate in the land, upon which the Indian title was a mere burden": St. Catherine's Milling at p. 58. The personal usufructuary right held by the Saulteaux people disappeared when the lands were surrendered to the Crown under the 1873 treaty. The Court held that the federal government ceased to have jurisdiction over the lands pursuant to s. 91(24) of the BNA Act because the entire beneficial interest passed to the Province of Ontario under s. 109.
477 The Privy Council later qualified its description of the Aboriginal interest as a personal right. The Court explained that "personal" meant the land was "inalienable except by surrender to the Crown": Attorney General (Quebec) v. Attorney General (Canada), [1921] 1 A.C. 401, pp. 410-411 (P.C.) (the Star Chrome case). The right was thought to be held at the pleasure of the Crown and could be extinguished at any time.
478 The description of Aboriginal title as a usufructuary right was favoured by the Supreme Court of Canada into the 1980's: see, for example, Smith v. The Queen, [1983] 1 S.C.R. 554 at pp. 561-2; Guerin v. The Queen, [1984] 2 S.C.R. 335, per Dickson J. at p. 379 and p. 382. Viewed through a more contemporary lens, it is not surprising the Supreme Court of Canada has found that describing Aboriginal title as a usufructuary right is "not particularly helpful": Delgamuukw (S.C.C.) at para. 112. Given the nature of Aboriginal title as now defined by the jurisprudence, it is fair to say that it can no longer be characterized as a usufructuary right.
479 The historical view of Aboriginal title grew out of Canada's colonial past, what Professor Slattery calls "the Imperial Model of the Constitution": Slattery, B. "The Organic Constitution: Aboriginal Peoples And The Evolution of Canada" (1995) 34 Osg. Hall. L.J. 101 at p.103. This concept of the Constitution is constructed upon British law, primarily consisting of statutes passed by the Imperial Parliament. From this perspective Aboriginal people had no inherent jurisdiction over their lands and peoples, and had only those rights that were recognized by a Crown Act.
480 Prior to the 1970's, there was little support in Canadian law for the recognition of Aboriginal title, unless the claim was based on the Royal Proclamation, 1763. D.W. Elliott summarized the situation in an article entitled "Aboriginal Title" reproduced in Morse, ed., Aboriginal Peoples and the Law (Ottawa: Carleton University Press, 1985) 48 at p. 61:
482 Calder was a turning point which changed our basic understanding of Aboriginal rights and allowed us "to move from a framework grounded in imperial history to a framework more open to local history, tradition, and perspectives": Slattery, "The Organic Constitution" at p. 107.
483 In the Calder case the Nishga people sought a declaration of Aboriginal title to lands their ancestors had occupied and used from time immemorial. The Court split three ways, disagreeing on the result. A majority of the Court suggested that Aboriginal title may exist separately from the Royal Proclamation. Judson J., speaking for Maitland and Ritchie JJ., found that the geographical limitations of the Royal Proclamation meant that it had no bearing upon the question of "Indian title" in British Columbia. He went on to observe at p. 328:
486 Hall J., speaking for Spence and Laskin JJ., disagreed with Judson J. on the extinguishment issue. He concluded that if a right was to be extinguished, it must be done by specific legislation, not by general land legislation.
487 In what appears as a fresh approach to the issue of Aboriginal title, Hall J. recognized that the Nishga people were a distinctive cultural entity "with concepts of ownership indigenous to their culture and capable of articulation under the common law": Calder, p. 375.
488 A question left open by Hall J. was whether Aboriginal possession of the kind disclosed by the admitted and proved facts in Calder was sufficient juridical possession to give rise to proprietary rights. In the Court of Appeal, Calder v. A.G.B.C. (1970), 13 D.L.R. (3d) 64 (B.C.C.A.) at p. 66, Davey C.J.B.C. explained that although "the boundaries of the Nishga territory were well known to the tribes and to their neighbours ... These were territorial, not proprietary boundaries, and had no connection with notions of ownership of particular parcels of land". The issue of boundaries is one which arises repeatedly in Aboriginal title cases.
489 The Calder decision was applied in Baker Lake. The Inuit people who lived in the Baker Lake area brought an action in the Federal Court of Canada asserting claims over an undefined portion of the Northwest Territories, including approximately 78,000 square kilometres surrounding the community of Baker Lake. The plaintiffs' ancestors lived a nomadic existence on the "barren lands" and their survival depended primarily upon the availability of caribou.
490 The plaintiffs advanced "ownership" claims, including injunctions restraining the Crown from issuing land use permits, and mining companies from mining. They also requested a declaration that the claimed lands were not public or territorial lands. The plaintiffs also made non-proprietary claims of a title to hunt and fish.
491 In regard to the hunting and fishing rights claim, the plaintiffs sought "a declaration that the lands comprising the Baker Lake area" were "subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon": Baker Lake, p. 524. As Mahoney J. noted at p. 559: "The aboriginal title asserted here encompasses only the right to hunt and fish as their ancestors did".
492 Mahoney J. considered the source of Aboriginal title and at p. 556 referred to the Calder (S.C.C.) decision as:
This territorial standard of occupation has since been termed the Baker Lake test.
494 The standard used in the Baker Lake test reflected the limited content of the right claimed. Mahoney J. commented on the fact that the Inuit were few in number and wandered over a large area, saying at p. 561:
496 The court considered that this right to hunt and fish could coexist with the radical or allodial title of the Crown, or with notional occupation by the Crown. However, it could not coexist with physical occupation by private landholders or by the trading posts of the Hudson's Bay Company. Mahoney J. said at p. 565:
500 The next important development in Canadian Aboriginal law was the patriation of the Canadian Constitution with the enactment of the Constitution Act 1982, and in particular, s. 35(1). That section reads:
35(1)
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
501 In Professor Slattery's opinion this provision represents "a basic shift in our understanding of the constitutional foundations of Canada": "Organic Constitution" at p. 108. He pointed to the response of the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075 at pp. 1105-1106 where the Court quotes with approval an article by Professor Noel Lyon entitled, "An Essay On Constitutional Interpretation" (1988) 26 Osgoode Hall L.J. 95:
503 The view that Aboriginal title is rooted in Canadian soil is embodied in the theory that title is sui generis. Put in more simple terms, Aboriginal title in this country is unique and in a class by itself.
504 In Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654 the Supreme Court of Canada said at p. 678 "that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although ... it is difficult to describe what more in traditional property law terminology".
505 The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both the common law and Aboriginal legal systems. Aboriginal title does not belong to either one of these perspectives, and can only be explained and understood by reference to both: Delgamuukw (S.C.C) at para. 112. The Court went on to explain the underlying principles of this sui generis title at para. 113 of Delgamuukw:
513 Van der Peet arose out of the prosecution of a regulatory offence pursuant to the Fisheries Act, R.S.C. 1970, c. F-14 and Regulations. Two members of the Sto:lo First Nation caught ten salmon in the Fraser River. They held an Indian food fishing licence which permitted them to catch fish for food. The federal fisheries Regulation specifically prohibited the sale or barter of any fish caught under the authority of such a licence. Ms. Van der Peet, the common law wife of one of the fishermen, sold the salmon for $50. She was charged under the Fisheries Act. She defended the charges against her on the basis that in selling the fish she was exercising an existing Aboriginal right to sell fish.
514 In the result, the majority of the Supreme Court upheld Ms. Van der Peet's conviction. In doing so, Lamer C.J.C. confirmed that s. 35(1) did not create the legal doctrine of Aboriginal rights. Those rights existed and were recognized under the common law prior to 1982. Lamer C.J.C. explained the foundation of the modern doctrine of Aboriginal rights at para. 30, as follows:
520 The Supreme Court of Canada made a similar observation regarding Australian jurisprudence in Van der Peet at para. 38:
522 This view has been altered in the post-Constitution Act, 1982 jurisprudence. In the Supreme Court of Canada cases Adams and Côté, the Court confirmed that "claims to title to the land are simply one manifestation of a broader-based conception of aboriginal rights": Adams at para. 25.
523 Côté and Adams confirmed that site-specific Aboriginal rights to fish and hunt may be established over some or all of a group's traditional territory even where a claim of Aboriginal title is not made out. Aboriginal title does not subsist everywhere that Aboriginal rights are carried out, and Aboriginal title does not exist everywhere in a group's exclusive traditional territory.
524 This development shed new light upon previous arguments concerning the geographic extent of Aboriginal title. It was possible for an Aboriginal group to show that a particular practice, custom or tradition taking place on particular lands was integral to their distinctive culture so as to establish site-specific Aboriginal rights, but not establish Aboriginal title on those same lands. Thus, it was clear there were areas used by Aboriginal people upon which Aboriginal title did not exist.
525 In Adams, the Supreme Court rejected the position of the Quebec government that an Aboriginal fishing right could not be found on land in relation to which the Indians had surrendered their Aboriginal title. In Adams at paras. 26 and 27, it was noted "that some Aboriginal peoples were nomadic, varying the location of their settlements with the season and changing circumstances" and that these peoples' form of occupation and use of lands was not "sufficient to support a claim of title to the land" even though "many of the practices, customs and traditions of nomadic peoples that took place on the land were integral to their distinctive cultures".
526 In Côté the appellants, members of the Algonquin nation, were convicted of the offence of entering a controlled harvest zone in the Outaouais region of Quebec without paying a provincially required fee for motor vehicle access. Côté was also convicted of the offence of fishing within the zone without a valid licence. The appellants jointly challenged their convictions on the basis that they were exercising an Aboriginal right and concurrent treaty right to fish based on a claimed Aboriginal title to their ancestral lands.
527 As with the other pre-1990 cases, throughout the lower court proceedings the appellants in Côté framed their claim as a right to fish incidental to Indian title to their ancestral lands. They relied on the Baker Lake test of occupation.
528 The Supreme Court of Canada concluded in Côté that fishing for food within the lakes of the relevant territory was a significant part of the life of the Algonquin people. This gave rise to an Aboriginal right exercisable in that territory even in the absence of Aboriginal title.
529 At para. 67 of Côté the Supreme Court of Canada stated:
531 The developments in Adams and Côté were described in an article written by Kent McNeil titled "Aboriginal Title and Aboriginal Rights: What's the Connection?" (1997), 36 Alta. L.R. 117. At p. 121 he said the following:
533 The Court examined in abstract terms: the content of Aboriginal title, how it is protected by s. 35(1) and what is required for its proof. Although the majority of the judgment is considered obiter dicta, it is, as Lambert J.A. has observed, "very persuasive obiter": D. Lambert, "Van der Peet and Delgamuukw: Ten Unresolved Issues" (1998) 32 U.B.C. Law Rev. 249 at p. 255.
534 Lamer C.J.C. wrote the principle judgment in Delgamuukw (S.C.C.). He repeated at para. 2 that the court in Adams and Côté had "rejected the proposition that claims to Aboriginal rights must also be grounded in an underlying claim to Tsilhqot'in Nation v. British Columbia Page 169 aboriginal title". He also affirmed that Aboriginal title is a "distinct species of aboriginal right that was recognized and affirmed by s. 35(1)": Delgamuukw, para. 2. Lamer C.J.C. then authored a theory of Aboriginal rights in which those rights fall along a spectrum, depending on their degree of connection to the land.
535 Lamer C.J.C. adopted Dickson J.'s characterization of Aboriginal title in Guerin as sui generis. Lamer C.J.C. further stated at para. 111:
537 Lamer C.J.C. then provided the following explanation for the content of Aboriginal title at para. 117:
539 Aboriginal title confers a right to exclusive use, occupation and possession to use the land for the general welfare and present-day needs of the Aboriginal community: Delgamuukw, para. 121. Aboriginal title also includes a proprietary-type right to choose what uses Aboriginal title holders can make of their title lands. Title is subject to an inherent limit which is defined by "the nature of the attachment to the land which forms the basis of the particular group's aboriginal title": Delgamuukw, para. 111. Such inherent limits prohibit those uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples: Delgamuukw, para. 128.
540 Aboriginal title also has an economic component, which will ordinarily give rise to fair compensation when Aboriginal title is infringed, varying in amount with the nature and severity of the infringement "and the extent to which Aboriginal interests were accommodated": Delgamuukw, para. 169.
541 Aboriginal title, like Aboriginal rights more generally, is held communally: Delgamuukw, para. 115. It is inalienable to third parties, but can be surrendered to the Crown: Delgamuukw, paras. 129-131. It must be surrendered in order to use the lands in a way contrary to the inherent limit.
b. Test for Aboriginal Title
i. Pre-sovereignty Occupation
542 Aboriginal title is proven by demonstrating three critical elements, all of which are concerned with occupation of the land, and all of which must be met in order to make out a successful claim. The Aboriginal people must establish that they occupied the lands in question at the time when the Crown asserted sovereignty over those lands. "If present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation." And finally, "occupation must have been exclusive": Delgamuukw, para. 143.
543 Aboriginal title arises out of the claimant's connection to their ancestral lands. The particular lands must have been occupied by the claimants prior to sovereignty. Although the Court notes that the group's connection with the land must have been integral to the distinctive culture of the claimants, Lamer C.J.C. also directed that "any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants": Delgamuukw, para. 151.
544 Lamer C.J.C. explained at para. 149 that the standard of occupation required to prove Aboriginal title may be established in a variety of ways:
ii. Exclusivity
546 Exclusive occupation may be demonstrated by the ability to exclude others, including "the intention and capacity to retain exclusive control" of the lands: Delgamuukw, paras. 155-156. Proof of exclusivity must rely on both the perspective of the common law and the Aboriginal perspective, placing equal weight on each. The Court went on to explain at para. 156:
547 Continuity is not a mandatory element for proof of Aboriginal title. It becomes an aspect of the test where an Aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation of the claimed territory. Establishing continuity may be difficult for some claimants where their occupation shifted due to colonial settlement, disease and other post-sovereignty conditions.
548 Where an Aboriginal group provides direct evidence of pre-sovereignty use and occupation of land to the exclusion of others, such evidence establishes Aboriginal title. There is no additional requirement that the claimant group show continuous occupation from sovereignty to the present-day. Upon the assertion of sovereignty, Aboriginal title crystallized into a right at common law, and it subsists until it is surrendered or extinguished.
549 Aboriginal claimants do not need to establish an unbroken chain of continuity between present and prior occupation: Van der Peet, para. 65. Aboriginal occupation may have been disrupted "perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title": Delgamuukw (S.C.C.), para. 153. Claimants must demonstrate that a substantial connection between the people and the land has been maintained: Delgamuuukw (S.C.C), para. 154.
550 Because Aboriginal title is grounded in the continuing relationship between Aboriginal people and the land, it cannot be made the subject of a transfer. This common law principle meant settlers had to derive their title from the Crown, not from Aboriginal inhabitants.
551 In Delgamuukw (S.C.C.) Lamer C.J.C. said at para. 126:
554 Marshall; Bernard is the Supreme Court of Canada's most recent decision on Aboriginal title. That case stands for the proposition that Aboriginal title is not co-extensive with any particular Aboriginal group's traditional territory. The parties in the case at bar appear to accept that proposition but fail to agree upon what that means, taking into account the facts in this case.
555 The parties in this case agree that the modern cases have defined Aboriginal title as an Aboriginal right, grounded in the continuing relationship between the Aboriginal people themselves and the land. They are divided on the application of the principles and in particular on the impact of the Supreme Court's decision in Marshall; Bernard. The plaintiff is accused of misconceiving Aboriginal title as an over arching title, alleged to exist throughout the entire traditional territory of the Tsilhqot'in Nation. The defendants say the plaintiff arbitrarily defines the Claim Area, as one part of the larger traditional territory.
556 The plaintiff says that the above characterization of his claim is entirely incorrect. He says the defendants have taken an untenably narrow view of Aboriginal title, completely divorced from the realities of Aboriginal life. The plaintiff argues that the defendants misunderstand the characterization of definite tracts of land used by the Tsilhqot'in people for hunting, fishing and gathering, and are attempting to confine Aboriginal title to narrowly defined pinpoint sites. He says British Columbia's acknowledgement that Aboriginal title might be established in some exceptional circumstances to a specific "salt lick" or a "narrow defile" where game concentrate each year as opposed to a more broadly used area for hunting, fishing and gathering, is entirely incorrect. In the submission of the plaintiff, this is not the promise of Aboriginal title foretold by the foregoing decisions. Due to the importance of the Marshall; Bernard decision, I must consider in detail the decisions of the lower courts and the Supreme Court of Canada.
557 In R. v. Bernard, [2000] 3 C.N.L.R. 184 (N.B. Prov. Ct.), Mr. Bernard, a Mi'kmaq person, cut timber on Crown lands near Miramichi, New Brunswick. He was charged under the provincial statute. In his defence he claimed treaty rights and Aboriginal title to a watershed area that included the Crown lands where the particular cut blocks were located.
558 In rejecting the Aboriginal title claim to the Miramichi watershed, Lordon P.C.J. made the following findings at paras. 98-100 and 103-110:
559 In the trial judge's view "[o]ccasional forays for hunting, fishing and gathering are not sufficient to establish Aboriginal title in the land": R. v. Bernard, para. 107. The accused were convicted.
560 An appeal to the Court of Queen's Bench sitting as a Summary Conviction Appeal Court confirmed Mr. Bernard's conviction: R. v. Bernard, 2001 NBQB 82, 239 N.B.R. (2d) 173. The defendant then appealed to the Court of Appeal, where the majority set aside the conviction and entered an acquittal: R. v. Bernard, 2003 NBCA 55, 262 N.B.R. (2d) 1.
561 In the New Brunswick Court of Appeal, Daigle J.A. disagreed with the trial judge on the standard of occupation required to establish Aboriginal title. Daigle J.A. was satisfied that the claimed area was subject to Miramichi Mi'kmaq Aboriginal title. Daigle J.A. also upheld the treaty defence, finding the harvesting of logs to be the contemporary form of a treaty right. Robertson J.A. also disagreed with the trial judge on the standard of occupation required to establish Aboriginal title. Robertson J.A. refrained from answering the question as to whether the evidence was sufficient to support a declaration of Aboriginal title, concluding it was unnecessary in the circumstances. Instead he overturned the conviction on the basis of the existence of a treaty right to harvest and sell logs. Deschenes J.A., dissenting, would not have interfered with the trial judge's findings of fact.
562 In expressing his disagreement with the trial judge, Daigle J.A. said the following at paras. 86-88:
564 The trial judge recognized that Nova Scotia was Mi'kmaq territory, unchallenged by any other Aboriginal group. He concluded that the Mi'kmaq probably had Aboriginal title to lands around their local communities but not to the cutting sites. In reaching that conclusion, the trial judge explored the degree of occupancy necessary to establish Aboriginal title saying at para. 139:
568 The Nova Scotia Court of Appeal allowed the appeal, set aside the convictions and ordered new trials: R. v. Marshall, 2003 NSCA 105, [2003] N.S.J. No. 361. Cromwell J.A. and Oland J.A. concluded that the Supreme Court of Canada had only provided limited guidance on the nature of Aboriginal occupancy that must be proven to establish Aboriginal title. They concluded at paras. 135-138 that:
569 The Nova Scotia Court of Appeal in Marshall concluded that the lower courts had erred in requiring proof of regular, intensive use of the specific cutting sites to establish Aboriginal title. Cromwell J.A. stated at paras. 183-184 (Saunders J.A. also concurring on this point):
571 At para. 53, McLachlin C.J.C. confirmed the modern concept of a variety of independent Aboriginal rights. She went on to say the following at para. 54:
579 At para. 67, she addressed the issue of continuity, saying:
583 It appears to me that The Supreme Court of Canada has set a high standard, requiring "regular use or occupancy of definite tracts of land". The Supreme Court has now clearly stated that "[t]o say that title flows from occasional entry and use is inconsistent with [...] the approach to aboriginal title which this Court has consistently maintained": Marshall; Bernard, at para. 59.
584 Bearing in mind the directions I have set out above, I must now consider the evidence in the manner directed by the Supreme Court to see whether this is an appropriate case for a declaration of Aboriginal title. ”
“20. INFRINGEMENT OF ABORIGINAL TITLE
1053 I have concluded that the provisions of the Forest Act do not apply to Aboriginal title land. If I am wrong, it becomes necessary for me to consider whether such legislation or the application of the legislative scheme established by the Forest Act infringes Tsilhqot'in Aboriginal title. I conclude that the passing of the Forest Act does not infringe Aboriginal title but I have no difficulty in finding that the application of the legislative scheme established by the provisions of the Forest Act does infringe that title for the following reasons.
a. General Principles
1054 Today we understand that Aboriginal title confers "the right to the land itself": Delgamuukw (S.C.C.) at para. 138. Aboriginal title "encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures": Delgamuukw (S.C.C.) at para. 117. The Crown does not have a present proprietory interest in such lands. The Crown's interest is residual and is only perfected on surrender of the land by the Aboriginal title holders.
1055 Aboriginal rights are not absolute. Infringement by the Crown "is justified in pursuance of a compelling and substantial legislative objective for the good of larger society": Marshall; Bernard at para. 39, citing Sparrow at p. 1113. This holds true for all Aboriginal rights.
1056 The Supreme Court of Canada first established the infringement and justification framework in Sparrow. Dickson C.J.C. and La Forest J., writing jointly for the Court, described this framework as a vehicle for reconciling Aboriginal rights with the interests of the greater public. Starting from the premise that the Crown's powers must be reconciled with its duties to Aboriginal peoples, Dickson C.J.C. and La Forest J. at pp. 1109-1110 said:
1058 A person claiming an Aboriginal right bears the onus of establishing that the government's conduct amounts to a prima facie infringement or denial of that right. Once this onus is discharged, the burden then shifts to the Crown to demonstrate that its conduct was justified. Proof of infringement of an Aboriginal right protected by s. 35(1) triggers the Crown's burden to justify its conduct.
1059 The test for infringement was set out in Sparrow at pp. 1111-1112, as follows:
1061 In R. v. Gladstone, [1996] 2 S.C.R. 723, the Supreme Court revisited the criteria for infringement of an Aboriginal right and further clarified the concepts raised in the Sparrow case. In Gladstone, Lamer C.J.C., for the majority, stated, at para. 43:
1064 In Delgamuukw at para. 166, Lamer C.J.C. explained that Aboriginal title encompasses three features: the right to exclusive use and occupation of land; the right to choose to what uses land can be put; and that lands held pursuant to Aboriginal title have an inescapable economic component.
1065 There is potential for substantial interference with Aboriginal title at every stage of government land-use planning with respect to Aboriginal title lands. For example, the granting of conditional harvesting rights to third parties in an area encompassing land held subject to Aboriginal title stands in conflict with the right to exclusive use and occupation of the land, and the right to choose to what uses land can be put. Similarly, the economic impact of such grants may arise long before cutting occurs on the ground. Once it is known that the timber on Aboriginal title land is subject to conditional harvesting rights granted by the Crown, the economic value of that timber to the title holder is undermined.
1066 To have any significance for Aboriginal people, Aboriginal title must bring with it the collective right to plan for the use and enjoyment of that land for generations to come. Prior to European colonization, the lands and forests of Tsilhqot'in traditional territory supplied Tsilhqot'in people with sustenance and protection from the elements, as well as a moderate livelihood. Tsilhqot'in people were able to make all land use decisions with respect to that territory. The imposition of the provincial forestry management scheme removes the ability of Tsilhqot'in people to control the uses to which the land is put. Such a scheme also creates uncertainty concerning the protection of the land and forests for future generations of Aboriginal rights holders. In addition, it deprives Tsilhqot'in people of the ability to realize certain economic gains associated with harvesting rights. In my view, this constitutes an unreasonable limitation on Aboriginal title, denying Tsilhqot'in people their preferred means of enjoying the benefits of such title. The cumulative effects of these government decisions with respect to timber harvesting on Aboriginal title lands constitute a prima facie infringement and requires justification.
1067 The application of the provincial forestry scheme to Aboriginal title lands amounts to a clear denial of Aboriginal title. Planning to use the land and resources of an Aboriginal group without acknowledging the constitutionally entrenched interests of the Aboriginal group requires justification. Infringement or denial of title can occur at each stage of any land use process and so, at each stage, the Crown must justify its proposed actions with respect to Aboriginal title land.
1068 In the context of an Aboriginal right to fish, the directions in Sparrow are clear. The court must determine the following: is the limitation unreasonable; does the regulation impose undue hardship; and does the regulation deny to the holders of the right their preferred means of exercising that right? An application of this test to Aboriginal title land is possible. By failing to acknowledge Aboriginal title, the Crown's plans for Aboriginal title land are unreasonable and impose undue hardship on the title holders. Land use planning that contemplates the removal of an asset attached to the land, without recognition of the true owner of that asset, denies to the holders of Aboriginal title the means of exercising and enjoying the benefits of such title.
1069 In Haida Nation (B.C.C.A.), at para. 81, Lambert J.A. stated:
1071 In addition, the argument advanced by British Columbia fails to acknowledge the denial of Aboriginal title implicit at every stage of the planning process. That denial also constitutes an infringement.
1072 In Haida Nation, at para. 84, Lambert J.A. stated:
b. Application
1074 I am not prepared to say that the mere passing of legislation by a provincial Legislative Assembly, even if it has the potential to infringe Aboriginal title land, is a prima facie infringement. For that reason, I do not consider the passing of any forestry legislation to be a prima facie infringement on Tsilhqot'in Aboriginal title land. It is not legislation directed at Aboriginal title land but general legislation concerning a Crown asset. It is only when public officials seek to engage the provisions of such legislation in relation to Aboriginal title land that a prima facie infringement occurs.
1075 For example, when timber on Aboriginal title land is included in a TSA pursuant to the relevant legislation, there is a prima facie infringement of Aboriginal title. Thus, the inclusion of timber on Tsilhqot'in Aboriginal title land in the Williams Lake TSA is an infringement on Tsilhqot'in Aboriginal title. Each administrative step taken thereafter that might ultimately result in timber removal and sale by third parties is also an infringement of Tsilhqot'in Aboriginal title.
1076 It follows that the approval of cut blocks in forest development plans and the allocation of cutting permits are equally an infringement on Tsilhqot'in Aboriginal title.
1077 It bears repeating that the right to use resources, the right to choose land use, and the right to direct and benefit from the economic potential of the land are all aspects of Aboriginal title. If the Crown is engaged in land use planning for its own economic benefit and the economic benefit of third parties, then such activities are a direct infringement on any Aboriginal title. The rights holders do not have to wait for a decision to harvest timber before there has been an infringement. The infringement takes place the moment Crown officials engage in the planning process for the removal of timber from land over which the Crown does not have a present proprietary interest.
1078 As the Supreme Court observed at p. 1110 of Sparrow:
21. JUSTIFICATION OF INFRINGEMENT OF ABORIGINAL TITLE
a. General Principles
1082 Government power must be reconciled with government duty, "and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights": Sparrow at p. 1109.
1083 The test for the justification of infringement of Aboriginal title has two parts. The infringement must be in furtherance of a compelling and substantial legislative objective: Delgamuukw (S.C.C.), at para. 161. The infringement must also be consistent with the fiduciary relationship that exists between the Crown and Aboriginal peoples: Delgamuukw (S.C.C.), at para. 162.
1084 In this case, British Columbia bears the burden of justifying infringements caused by provincially authorized forestry activities.
b. Compelling and Substantial Legislative Objective
1085 There is a range of legislative objectives that may justify infringement of Aboriginal title. These objectives arise from the need to reconcile the fact that Aboriginal societies exist within and are part of a broader social, political and economic community: Delgamuukw (S.C.C.), at para. 161; Gladstone, at para. 73. The development of agriculture, forestry, mining and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support these aims, are the kinds of objectives that may justify the infringement of Aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives is ultimately a question of fact that must be examined on a case-by-case basis: Delgamuukw (S.C.C.), at para. 165.
1086 The foregoing view was initially developed by Lamer C.J.C. in the Van der Peet trilogy (Van der Peet, Gladstone, and R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672). In these cases, Lamer C.J.C. expressed the opinion that government limits on the exercise of Aboriginal rights are a necessary part of that reconciliation, provided such "limits are of sufficient importance to the broader community as a whole": Gladstone, at para. 73. A discussion of the minority opinions of McLachlin J. (as she then was) in Van der Peet and Gladstone are set out later in this judgment under the heading "Reconciliation".
1087 In the context of the disposition of Crown resources, the focus is on the particular measure or government activity and not on the overall legislative regime. Normally, such cases proceed on the premise that the Crown's infringing activity is constitutionally valid. It is this validity that raises potential for it to be an infringement. If the activity was unconstitutional the act itself is invalid and there is no need to consider infringement.
1088 I have already decided that provincial forestry legislation is inapplicable to Aboriginal title land. The discussion that follows is upon the basis that this conclusion is incorrect and that British Columbia's forestry legislation does apply to Aboriginal title land. What follows also takes into account the fact that there has been a finding of an infringement of title such as I have made in the preceding section.
1089 There can be no doubt that forestry falls within the range of government activities that might justify infringement of Aboriginal title. Generally speaking, the development of forest resources, and the protection of the environment and wildlife are all valid government objectives that may justify infringement of Aboriginal title and other Aboriginal rights.
1090 However, the analysis cannot end there. In this case I am concerned not with the general, but the specific. Can the Province justify its forestry activities in the Claim Area where such activities infringe Tsilhqot'in Aboriginal title? British Columbia must prove that it has a compelling and substantial legislative objective for the forestry practices, not just generally in British Columbia, but in the Claim Area in particular.
1091 In Delgamuukw, Lamer C.J.C. reiterated at para. 161 that legitimate government objectives include "the pursuit of economic and regional fairness". Lamer C.J.C. went on to state that: "By contrast, measures enacted for relatively unimportant reasons such as sports fishing without a significant economic component ("Adams", supra), would fail this aspect of the test of justification."
1092 This conclusion flows from Adams where the Court said at para. 58:
1094 Because Aboriginal title confers the right to the land itself: Delgamuukw (S.C.C.), at para. 138, British Columbia's forestry activities infringe Tsilhqot'in Aboriginal title as I have described in the preceding section.
1095 British Columbia argues, largely from a policy perspective, that there are good reasons for land use and forestry rules in the Claim Area. I believe this oversimplifies the test I must consider and apply.
1096 The question is not whether there is any merit in a provincial regulatory and administrative regime relating to forestry activities on Aboriginal title lands. There may well be merit in the existence of such a scheme. The inquiry here must focus on the application of that scheme to the circumstances of this case. Is there a compelling and substantial objective that justifies the infringements caused by British Columbia's land use planning and forestry activities on Tsilhqot'in title lands?
1097 Dr. Hamish Kimmins, a professional forester and expert in forest ecology, was called as a witness for British Columbia. The opinions he expressed were candid and of considerable assistance to the court. Dr. Kimmins testified that forests can be managed to address a wide range of options. They can be managed to protect a particular species of wildlife or to maximize the production of wood fibre. He confirmed that if one was aware of the cultural and economic objectives of a particular First Nation, a forest could be managed so as to afford that First Nation the opportunity to carry on trapping in a culturally and economically sustainable manner.
1098 As Dr. Kimmins explained, taken individually, each approach to forestry management constitutes single value management. He expressed the following opinions:
1099 A legislative scheme that manages solely for timber, with all other values as a constraint on that objective, faces a formidable challenge when called upon to balance Aboriginal rights with the economic interests of the larger society.
1100 For many years now, Tsilhqot'in people have opposed clear cutting in the Claim Area. They have argued for a form of ecosystem management that can sustain the region for generations to come. Their proposals have not been accepted because, as Dr. Kimmins observed, the current legislative system in British Columbia does not allow for ecosystem management.
1101 British Columbia appears to argue that the compelling and substantial objectives behind the alleged infringements include the economic benefits that can be realized from logging in the Claim Area, and a need to salvage forests affected by mountain pine beetle for sound silviculture reasons.
1102 Mountain pine beetle is currently destroying the pine forests of British Columbia, including those pine forests located in the Claim Area. Fire suppression activities are one reason offered for the advance of this forest infestation. Another reason is climate change. The absence of a sustained cold period during the winter means the beetle is able to survive into another year. However, it must be acknowledged that trees affected by mountain pine beetle play an important ecosystem function, providing valuable wildlife habitat that is consistent with the plaintiff's interests.
1103 What is clear from the evidence of Dr. Kimmins is that "sustainability is multi-faceted, involving a complex of physical, biological, social, economic, institutional and cultural dimensions: Kimmins report at p. 41. Given the findings of Tsilhqot'in Aboriginal rights resulting from these proceedings, there will be a need for British Columbia to develop a new model of sustainability in the Claim Area. The burden is on British Columbia to prove that any future harvesting of timber will not infringe Tsilhqot'in Aboriginal rights. That burden will require close consultation with Tsilhqot'in people, taking into account all of the factors that bear on their Aboriginal rights, as well as the interests of the broader British Columbia community.
1104 In an appendix to his report, Dr. Kimmins answered specific questions related to the mountain pine beetle infestation. He expressed the view that from the perspective of forest health, harvesting of lodgepole pine in the Claim Area was not necessary given the unprecedented nature of the mountain pine beetle epidemic and the climatic conditions of the past decade. If there was to be a harvesting of such timber, then, in the view of Dr. Kimmins, clear-cut harvesting would be appropriate so long as there were patches of dead trees of various sizes retained that would be consistent with the habitat need of the animal species of concern. I take it that in such an approach there would be specific consideration given to the well-being and continuity of the animals that are of particular concern to Tsilhqot'in people.
1105 Dr. Kimmins advised that conventional harvesting techniques could be carried out in a sustainable manner. However, this is dependant "on the values one is considering, and the time and spatial scale over which one is considering it": Kimmins report, p. 40.
1106 It is not possible to predict the future in this changing environment. The need to protect Tsilhqot'in Aboriginal rights throughout the Claim Area brings with it the need for a fresh approach to sustainability. This challenge can be met through the development of cooperative joint planning mechanisms taking into account the needs that must be addressed on behalf of the Tsilhqot'in community and the broader British Columbia and Canadian communities.
1107 I conclude that British Columbia has failed to establish that it has a compelling and substantial legislative objective for forestry activities in the Claim Area for two reasons. First, as was the case with sports fishing in Adams, there is no evidence that logging in the Claim Area is economically viable. The Claim Area has been excluded from the timber harvesting land base for an extended period of time. Even the Chief Forester acknowledged its more recent inclusion was questionable. The impact of forestry activities on the plaintiff's Aboriginal title is disproportionate to the economic benefits that would accrue to British Columbia or Canadian society generally.
1108 Second, I conclude there is no compelling evidence that it is or was necessary to log the Claim Area to deter the spread of the 1980's mountain pine beetle infestation. Rather, the evidence shows that none of the proposed harvesting is directed at stopping or limiting the mountain pine beetle outbreak.
c. Honour of the Crown
1109 Whether a particular infringement is consistent with the fiduciary relationship between the Tsilhqot'in people and the Crown will be a function of the "legal and factual context" of each case: Gladstone, at para. 56, cited in Delgamuukw (S.C.C) at para. 162. Three aspects of Aboriginal title are relevant when assessing whether or not the Crown's duty has been discharged in any given instance: the right to exclusive use and occupation of land; the right to choose to what uses the land will be put; and, the inescapable economic component": Delgamuukw (S.C.C.), para. 166.
1110 Government is required to demonstrate "'both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest' of the holders of aboriginal title in the land": Delgamuukw (S.C.C.) at para. 167, citing Gladstone, at para. 62. British Columbia must demonstrate that it gave adequate priority to Tsilhqot'in Aboriginal title and rights.
1111 In Sparrow and Gladstone, the application of this branch of the justification test meant that Aboriginal people received priority in the exploitation of the fishery resource. The Court indicated that the demands of the fiduciary relationship can manifest themselves in many other guises, including the duty of consultation, and ordinarily including a duty of fair compensation in all cases where title is being infringed.
1112 As suggested in Delgamuukw, (S.C.C.) at para. 167, the Crown has a duty to accommodate the participation of Tsilhqot'in people in developing the resources on their title lands. The conferral of fee simple lands for agriculture, and of leases and licences for forestry and mining must reflect the prior occupation of Aboriginal title lands. Economic barriers to Aboriginal uses of their lands, such as licensing fees, may be reduced. The Court explained that this is not an exhaustive list. There must also be an assessment of the various interests at stake in the resources in question.
1113 British Columbia must also demonstrate that "there has been as little infringement as possible in order to effect the desired result": Sparrow, p. 1119. Rather than observing this minimal requirement obligation, British Columbia does not appear to have considered in advance how its land use planning activities and proposed forestry activities might result in an infringement on Tsilhqot'in Aboriginal title and rights. Examples of these planning activities include:
d. Duty to Consult
1114 Where Aboriginal title exists or is alleged to exist, there is always a duty of consultation. As explained in Delgamuukw, (S.C.C.) at para. 168, the nature and scope of the duty of consultation will vary with the circumstances:
1122 The Court then considered the scope and content of the duty to consult, noting in para. 41 that "it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified." The Court presented "the concept of a spectrum", stating at paras. 43-45:
1123 To assist the Court in the consideration of the evidence, British Columbia summarized the evidence in a booklet entitled, "Chronologies, including consultation chronologies, dating from February 10, 1982 up to December 5, 2005". The consultation chronology consists of 193 pages. There is no doubt that considerable effort has been made to engage Tsilhqot'in people in the forestry proposals and the land use planning in the Claim Area. The central question is whether all of this effort amounts to genuine consultation.
1124 British Columbia argues that it has met its consultation duties respecting the CCLUP and other land use planning processes, but that the plaintiff has not responded in good faith. The plaintiff disagrees and argues that in the CCLUP and other land use planning processes, British Columbia has failed to reconcile its sovereignty with the Tsilhqot'in people's claims of Aboriginal title and rights.
1125 It is informative to consider the setting of the AAC under the provisions of the Forest Act. This task is assigned to the Chief Forester. The legislation is silent with respect to Aboriginal title and rights. The Chief Forester interpreted this silence as a direction to him to ignore any actual or claimed Aboriginal title or rights when determining the AAC. The AAC is based on the assumption that all areas contribute to the timber supply within the TSA until the issue of Aboriginal title is finally resolved.
1126 In 1992 the Premier of British Columbia, Premier Michael Harcourt, gave his undertaking to the Tsilhqot'in chiefs that no harvesting would occur in the Brittany Triangle without the consent of the Xeni Gwet'in.
1127 The Chief Forester was aware of this commitment when he made the 1996 AAC determination. Despite this knowledge, the Chief Forester considered it to be his statutory duty to fully incorporate the Claim Area into the timber harvesting land base and to ignore the potential for Tsilhqot'in Aboriginal title. The 1996 AAC was dependant on timber from that area. Notwithstanding that this decision clearly and specifically related to the future use and exploitation of lands in the Claim Area, Tsilhqot'in Aboriginal title is not mentioned as a relevant factor in the 1996 AAC rationale.
1128 The former Chief Forester testified that he did not (and believed he could not) adjust his AAC determination on the basis of a claim to Aboriginal rights and title. But the claims of the Tsilhqot'in people to Aboriginal rights and title imposed upon him a duty to consult. His failure to consult is not an infringement of Tsilhqot'in Aboriginal rights, including title. But what it means is that the Province is unable to justify their actual infringements of Aboriginal title and rights that might flow from the decision. This failure to consult might result in a later claim for damages dependant on the consequences of the decision that was made.
1129 British Columbia says that while strategic planning decisions may have serious impacts on Aboriginal title, all that such decisions trigger is a duty to consult. There can be no infringement until there is an authorization by the Crown for the removal of timber. Until that occurs, there is no direct infringement, only the potential for infringement.
1130 In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 when discussing the duty to consult, the Court said at paras. 75-76:
1132 The 1992 Tsuniah Lake Local Resource Use Plan and the 1993 draft Brittany Lake Forest Management Plan demonstrate the Province's determination to open up the Claim Area for logging. This objective was confirmed by the terms of the Cariboo-Chilcotin Land Use Plan established in 1994, and the related planning processes. The CCLUP is an expression of the highest level of provincial land use planning. The portions enacted by Cabinet as a higher level plan have the force of law and establish a process for all lower level decisions. These include timber targets for harvesting that direct a substantial level of commercial harvesting in the Claim Area in order to meet the targets mandated by the Plan.
1133 I do not propose to review these land use plans in detail. It is sufficient to note that none of the three plans took into account any Aboriginal title or Aboriginal rights that might exist in the Claim Area.
1134 The Province's express purpose in establishing the CCLUP was "resolving uncertainty" and dedicating "resource lands for industry and jobs". In its October 1994 explanation of the CCLUP, the Province said, in part:
1136 Over the years, British Columbia has either denied the existence of Aboriginal title and rights or established policy that Aboriginal title and rights could only be addressed or considered at treaty negotiations. At all material times, British Columbia has refused to acknowledge title and rights during the process of consultation. Consequently, the pleas of the Tsilhqot'in people have been ignored.
1137 Consultation involves communication. It has often been said that communication is the art of sending and receiving. Provincial policies either deny Tsilhqot'in title and rights or steer the resolution of such title into a treaty process that is unacceptable to the plaintiff. This has meant that at every stage of land use planning, there were no attempts made to address or accommodate Aboriginal title claims of the Tsilhqot'in people, even though some of the provincial officials considered those claims to be well founded. A statement to the effect that a decision is made "without prejudice" to Aboriginal title and rights does not demonstrate that title and rights have been taken into account, acknowledged or accommodated.
1138 Tsilhqot'in people also appeared from time to time to have a fixed agenda, namely the promotion of an acknowledgment of their rights and title. It must be borne in mind that it is a significant challenge for Aboriginal groups called upon in the consultation process to provide their perspectives to government representatives. There is a constant need for adequate resources to complete the research required to respond to requests for consultation. Even with adequate resources, there are times when the number and frequency of requests simply cannot be answered in a timely or adequate fashion.
1139 Consultations with officials from the Ministry of Forests ultimately failed to reach any compromise. This was due largely to the fact that there was no accommodation for the forest management proposals made by Xeni Gwet'in people on behalf of Tsilhqot'in people. Forestry proposals that concerned timber assets in the Claim Area were usually addressed by representatives of Xeni Gwet'in people. But, from the perspective of forestry officials, there was simply no room to take into account the claims of Tsilhqot'in title and rights.
1140 Conversely, there was good communication between Tsilhqot'in people with officials in the Ministry of Lands, Parks and Housing. Here the two groups were able to reach a consensus on the establishment and management of Ts'il?os Provincial Park, without prejudice to the rights and title claims of Xeni Gwet'in and Tsilhqot'in people in the park area. The joint management model of this Provincial Park has been such a success that it has been extended to the management of Nuntzi Provincial Park in the northeastern portion of Tachelach'ed.
1141 Utilizing the concept of a spectrum proposed in Haida Nation (S.C.C.), I place the rights and title claimed here at the high end of the scale, requiring deep consultation and accommodation. I have already noted there are areas of title inside and outside of the Claim Area. Aboriginal rights in the Claim Area have been acknowledged by the defendants in these proceedings. I have found the plaintiff is entitled to a finding of specific Aboriginal rights on behalf of all Tsilhqot'in people. On the whole of the evidence, and in particular with respect to forestry and land use planning throughout the Claim Area, the failure of the Province to recognize and accommodate the claims being advanced for Aboriginal title and rights leads me to conclude that the Province has failed in its obligation to consult with the Tsilhqot'in people. For these reasons, and for the reasons earlier expressed, the Province has failed to justify its infringement of Tsilhqot'in Aboriginal title. ”
Aboriginal Treaties:
_______________________________R v Marshall [1999] ___________________________
Facts: The accused, a Nova Scotia man by the name of Donald Marshall, admitted the offences. Mr. Marshall admitted that he caught and sold 463 pounds of eel without a licence and with a prohibited net within closed times. However Mr. Marshall argued that he should not be found guilty of the charges that were against him because as a Mi'kmaq Indian, he possessed the Treaty right to catch and sell fish pursuant to treaties that had been signed between the British and the Mi'kmaq in 1760-61.
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
“Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DOES NOT NEED TO SATESFY THE SPARROW TEST
NOTE: R v Marshall and R v Bernard ARE TOGETHER!
_____________________________R v Bernard [2005] _____________________________
Facts:
The respondents Marshall and Bernard are Mi'kmaq Indians living in Nova Scotia and New Brunswick respectively. Marshall and 34 others were charged with cutting timber on Crown lands in Nova Scotia without authorization contrary to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114. In New Brunswick, Bernard was charged with unlawful possession of 23 spruce logs he was hauling from the cutting site to the sawmill in contravention of s. 67(1)(c) of the Crown Lands and Forest Act, S.N.B. 1980, c. C-38.1. Both accused admitted all elements of the offence, except lack of authorization. Both were convicted at trial (R. v. Marshall, [2001] 2 C.N.L.R. 256; R. v. Bernard, [2000] 3 C.N.L.R. 184) and the convictions were upheld by the summary appeal court (R. v. Marshall, [2002] 3 C.N.L.R. 176; R. v. Bernard, [2002] 3 C.N.L.R. 114). The Courts of Appeal reversed the convictions: a new trial was ordered in Marshall ([2004] 1 C.N.L.R. 211), and an acquittal was entered in Bernard ([2003] 4 C.N.L.R. 48). At issue was whether the Mi'kmaq peoples in Nova Scotia and New Brunswick have the right to log on Crown lands for commercial purposes pursuant to treaty rights or Aboriginal title.
HELD: Appeals allowed
McLachlin C.J. –
· 1.
There is no ground for an appeal court to interfere with the branch of the case concerning the Aboriginal treaty right. The trial judges applied the right test and asked themselves the right questions. The evidence supports the trial judges' conclusions that the commercial logging that formed the basis of the charges against the respondents was not the logical evolution of traditional Mi'kmaq trading activity protected by the treaties of 1760-1761.
· 2.
The purpose of the truckhouse clause of the treaty, its wording and the holdings in R. v. Marshall 1, [1999] 4 C.N.L.R. 161 (S.C.C.) and R. v. Marshall 2, [1999] 4 C.N.L.R. 301 (S.C.C.) all lead to the conclusion that commercial logging is not within the scope of rights protected by treaty. The truckhouse clause was a trade clause, concerned with traditionally traded products. It implicitly granted the right to harvest resources, but the right to harvest is an adjunct of the right to trade in traditional products. The treaty protects the right to practice a traditional 1760 trading activity in the modern way and in a modern context, but nothing in the words of the treaty comports a general right to harvest or gather all natural resources then used. The inquiry focuses not on what resources were used in 1760, as asserted by the respondents, but what trading activities were in the contemplation of the parties at the time of the treaty. Only those trading activities are protected. Ancestral trading activities are not frozen in time and can evolve logically from traditional trading activities. The question is whether the modern trading activity represents a logical evolution. New and different trading activities, like commercial logging, are not protected.
· 3.
It is unnecessary to discuss the scope of "moderate livelihood" and the issues of cultural attributes and community authority, nor is it necessary to consider other treaty-related issues.
· 4.
Concerning the first of three grounds advanced by the respondents for their claim to Aboriginal title, common law Aboriginal title, there is no ground to interfere with the trial judges' conclusions that the respondents do not hold common law Aboriginal title to the land. The Nova Scotia Court of Appeal did not criticize the trial judge's findings of fact in Marshall, and although the New Brunswick Court of Appeal found fault with the findings of the trial judge in Bernard, any error was inconsequential. Even if the trial judge overlooked certain facts, they do not support a finding of Aboriginal title. Nor did the trial judges err in their assessment of the evidence or the application of the law to the evidence. Each trial judge required proof of sufficiently regular and exclusive use of the cutting sites to establish Aboriginal title, which was the correct and appropriate standard.
· 5.
Two central concepts inform the determination of Aboriginal rights: (1) both Aboriginal and European common law perspectives must be considered; and (2) a variety of Aboriginal rights may be affirmed.
· 6.
An Aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land continues to enjoy title to it, unless extinguished by clear legislative act prior to 1982. Aboriginal title to land is established by Aboriginal practices that indicate possession similar to that associated with title at common law. Specifically, documents must prove "exclusive" pre-sovereignty "occupation" of the land by their forebears. "Occupation" means "physical occupation". "Exclusive" occupation means "the intention and capacity to retain exclusive control" and is not negated by occasional acts of trespass or the presence of other Aboriginal groups with consent. There is a distinction between the requirements for a finding of Aboriginal title and the requirements for more restricted rights, such as hunting and fishing rights.
· 7.
Exclusive control is basic to the notion of title at common law. To say that title flows from occasional entry and use is inconsistent with the Court's approach maintained in cases such as R. v. Côté, [1996] 4 C.N.L.R. 26 (S.C.C.), R. v. Adams, [1996] 4 C.N.L.R. 1 (S.C.C.), and Delgamuukw v. British Columbia, [1998] 1 C.N.L.R. 14 (S.C.C.). Aboriginal societies were not strangers to the notions of exclusive physical possession equivalent to common law notions of title, as they often exercised such control over their village sites and other areas of land. Determining whether exclusion is present in pre-sovereignty Aboriginal society requires that one look to the evidence, despite the difficulty inherent in doing so. It is critical to view the question of exclusion from the Aboriginal perspective. While evidence of acts of exclusion is not required to establish Aboriginal title, demonstration of effective control of the land by the group is necessary, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so.
· 8.
Whether semi-nomadic or nomadic peoples can ever claim title to land will depend on the evidence. The question is whether a degree of physical occupation or use equivalent to common law title has been made out.
· 9.
Claimants asserting common law Aboriginal title or a more restricted Aboriginal right must establish a connection with the pre-sovereignty group. They must also show that the right is a descendant of pre-sovereignty Aboriginal practices. To claim title, the group's connection with the land must be shown to have been "of a central significance to their distinctive culture".
· 10.
Underlying all these issues is the need for a sensitive and generous approach to the evidence tendered to establish Aboriginal rights. Oral history evidence is permitted, provided it meets the required standards of usefulness and reasonable reliability. Evidence must be evaluated from the Aboriginal perspective. The ultimate goal is to translate the pre-sovereignty Aboriginal right to a modern common law right. This must be approached with sensitivity to the Aboriginal perspective as well as fidelity to the common law concepts involved.
· 11.
It is unnecessary to consider extinguishment, infringement, justification and continuity issues.
· 12.
The second ground advanced by the respondents for their claim to Aboriginal title was that the Royal Proclamation of 1763 gave them Aboriginal title to all unceded, unpurchased land in the former colony of Nova Scotia. In accordance with principles of interpretation set out in Nowegijick v. The Queen, [1983] 2 C.N.L.R. 89 (S.C.C.) and the recognition that the Royal Proclamation is the "Magna Carta" of Indian rights in North America (R. v. Secretary of State for Foreign and Commonwealth Affairs, [1981] 4 C.N.L.R. 86 (Engl. C.A.)), it must be interpreted liberally and doubts resolved in favour of Aboriginal peoples. As contemporaries considered that the Royal Proclamation applied to Nova Scotia, the Court proceeded on the basis that it did.
· 13.
An examination of the text of the Royal Proclamation does not support the proposition that it granted title to the Mi'kmaq. When the Royal Proclamation directed the reservation or annexation of land, it used terms of grant and referred to the specific tracts of land. The words of the preamble pointed to as granting Aboriginal title do not accord new rights. A second phrase allegedly reserving to the Mi'kmaq all unceded or unpurchased land in the Nova Scotia colony did not use the direct and clear language used elsewhere to reserve lands to the Indians, and thus does not create new rights in land either, merely repeating the wording from the preamble. Subsequent provisions requiring settlers to leave lands reserved to the Indians reinforce this view, because otherwise these provisions would have had the effect of ejecting all the settlers from the colony. In fact, the opposite occurred, extensive settlement took place shortly after the Royal Proclamation. The language of a third phrase is equally consistent with referring to newly reserved lands as it is to previously reserved lands.
· 14.
Both jurisprudence (R. v. Sioui, [1990] 3 C.N.L.R. 127 (S.C.C.)) and historic policy support the Crown's argument that the Royal Proclamation did not grant Nova Scotia to the Indians. From the beginning of discussions about the Royal Proclamation, the imperial territories were divided into lands to be settled and lands where settlement would be deferred. The purpose of the Royal Proclamation was to minimize potential conflict between settlers and Indians. Reserving Nova Scotia to the Indians would completely counter the planned settlement of Nova Scotia.
· 15.
The third ground advanced by the respondents for Aboriginal title was Governor Belcher's Proclamation. A Royal Instruction of December 9, 1761 forbidding the granting of lands adjacent to or occupied by the Indians prompted Governor Belcher to issue his Proclamation in 1762. It directed settlers to remove themselves from lands "reserved to or claimed by" the Indians. The trial judge in Bernard found however that Belcher's Proclamation granted only a "common right to the Sea Coast", and was limited to "hunting, fowling and fishing", not logging. Moreover, the authority of Belcher's Proclamation is suspect and His Majesty's disallowance was made clear by letter of March 20, 1764.
per LeBel J. –
· 1.
Concerning the treaty right, it comprises both a right to trade and a right of access to resources. The question is what this implies in a modern setting. The modern activity must bear some relation to the traditional use of forest products in the Mi'kmaq economy. Only those types of resources traditionally gathered in the Mi'kmaq economy would reasonably have been in the contemplation of the parties to the treaties. In order to be protected under the treaties of 1760-1761, trade in forest products must be the modern equivalent or a logical evolution of Mi'kmaq use of forest products at the time the treaties were signed. The conclusion that trade in forest products was not in the contemplation of the parties in 1760 is consistent with the evidence adduced at trial. The parties did not contemplate access to forest resources for purposes other than trade in traditional products, such as bows, arrows, etc., and commercial logging is not the logical evolution of traditional trading activity. It represents a fundamentally different use from that which would have been in the contemplation of the parties.
· 2.
Concerning Aboriginal title, the record in the Court below lacks the evidentiary foundation necessary to make legal findings on this issue in respect of the cutting sites in Nova Scotia and New Brunswick. Consequently, the respondents in these cases have failed to sufficiently establish their title claim.
· 3.
Given the nature of Aboriginal peoples' historical use of land, the test for Aboriginal title set out in the majority judgment is too narrowly focussed on common law concepts relating to property interests. Aboriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the Aboriginal and common law approaches.
· 4.
While it is very difficult to introduce Aboriginal conceptions of property and ownership into the modern property law concepts of the civil law and common law, this Court has on many occasions noted the sui generis nature of Aboriginal title. Aboriginal title arises from the prior possession of land and the prior social organization and distinctive cultures of Aboriginal peoples on that land. Aboriginal title must be understood with reference to both common law and Aboriginal perspectives, and they must be given equal consideration.
· 5.
The role of the Aboriginal perspective is not simply to help in the interpretation of Aboriginal practices in order to assess whether they conform to common law concepts of Aboriginal title. Aboriginal title cannot be framed exclusively by reference to common law concepts. The patterns of Aboriginal occupation of land should inform the standard necessary to prove Aboriginal title. Nomadic peoples and their modes of occupation of land cannot be ignored when defining the concept of Aboriginal title to land in Canada. The common law notion that "physical occupation is proof of possession" remains, but the nature of the occupation is shaped by the Aboriginal perspective, which includes a history of nomadic or semi-nomadic modes of occupation.
· 6.
The nature and patterns of land use that are capable of giving rise to a claim for title are not uniform and are potentially as diverse as the Aboriginal peoples that possessed the land prior to the assertion of Crown sovereignty. Taking into account the Aboriginal perspective on the occupation of land means that physical occupation as understood by the modern common law is not the governing criterion. The group's relationship with the land is paramount. To impose rigid concepts and criteria is to ignore Aboriginal social and cultural practices that may reflect the significance of the land to the group seeking title. The mere fact that the group travelled within its territory and did not cultivate the land should not take away from its title claim.
· 7.
The standard of proof must reflect the patterns of occupation of the land prior to the assertion of British sovereignty. Pre-sovereignty patterns of use are highly relevant to the issue of occupation.
· 8.
In the context of Aboriginal title claims, the physical fact of sedentary and continuous occupation is only one of the sources of title. Occupancy must be determined by reference to activities that have taken place on the land and the uses to which the land has been put by the particular group. Occupancy cannot be equated to the common law notion of possession amounting to a fee simple. Proof of Aboriginal title relates to the manner in which the Aboriginal group used and occupied the land prior to the assertion of Crown sovereignty.
· 9.
The Aboriginal perspective on the occupation of their land can be gleaned in part from pre-sovereignty systems of Aboriginal law. The relevant laws consisted of the elements of the practices, customs and traditions of Aboriginal peoples and might include a land tenure system or laws governing land use.
· 10.
In considering the degree of occupation sufficient to establish title, one must be mindful that Aboriginal title is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the Aboriginal group's culture. Occupation should therefore be proved by evidence not of regular and intensive use of the land but of the traditions and culture of the group that connect it with the land. Thus intensity of use is related not only to common law notions of possession but also to the Aboriginal perspective.
· 11.
It is inappropriate to litigate Aboriginal rights issues in the context of summary conviction proceedings, as the issues have little to do with the criminality of the accused's conduct. The criminal process is inadequate for dealing with such complex, important claims, which are properly the subject of a civil action for a declaration. Procedural and evidentiary difficulties and the impact of the claims on third parties who have a right to be heard, among other difficulties, illustrate that summary conviction proceedings are not conducive to adjudicating fairly on such claims. When issues of Aboriginal title or other Aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to seek a stay so that the Aboriginal claim can be litigated in the civil courts.
R. v. Marshall; R. v. Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties were the right to commercial fishing was granted in the R. v. Marshall decision.
This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown land without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.
At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.
Opinion of the court McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the evidence she found that it did not support the conclusion that logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.
v Chapter 7à “Statutory Interpretation”
P A R T III: INTERPLAY BETWEEN THE COURTS AND THE POLITICAL BRANCHES OF GOVERNMENT
-We now shift from a discussion of the structure and function of Canadian public law institutions to a closer examination of how the legislative, executive, and judicial branches interact with one another.
-The focus s on the relationship between the courts and the other branches of government – the legislature and he executive
-So long as Parliament or its provincial counterparts observe the binding constitutional limits on their jurisdiction, they are supreme and the courts must simply interpret and carry out their dictates as expressed in their acts.
-But if a legislature wanders beyond its constitutional limits, it must be subordinated by the courts to the Constitution.
-In this case, the courts will do 2 things:
(1) they determine the exact nature and scope of the constitutional limits, by interpreting the written Constitution and sometimes by discerning unwritten constitutional principles by which the legislature must abide. So, they perform a “constitutionalized interpretation role”
(2) they decide whether a given statute has exceeded the constitutional limits determined through interpretation. If it has, they provide a remedy (normally, the remedy is to declare that the offending legislation is invalid and has no force of effect)
-This is an example of the courts’ direct judicial review. But the courts often engage in indirect review when they interpret legislation in light of common law constitutional values such as respect for individual autonomy and private property rights.
-Clearly, the separation of powers between the judiciary and the legislative branch is critically important to Canadian democracy, which often provokes a heated debate.
-Somewhat less controversial is the relationship between the courts and the executive.
-Since the executive has limited legal powers, primarily delegated to it by the legislature by statute, the courts serve as the legislative’s foot soldiers, preventing the executive from usurping power not accorded to it by the legislative branch.
I. OVERVIEW OF STATUTORY INTERPRETATION
A. INTRODUCTION
-Although statutory interpretation is generally addressed in the context of public law, there is no area of law that is not governed at least in part by legislation.
-Furthermore, the skills required to read legislation and resolve interpretation disputes are also needed to deal with private law documents such as contracts, collective agreements, wills, and trusts.
-Additionally, they are also needed to deal with Constitutional Acts against which ordinary legislation is tested as well as treaties with aboriginal peoples and international agreements
-All these texts rely on language to set out legally binding rules.
-To determine the content of the rule, it is necessary to interpret the language of the text
B. SOURCE OF INTERPRETATION LAW
-There are 3 main sources of interpretation law: interpretation acts; interpretation rules in individual statutes and regulations; and common law
1. Interpretation Acts
-The role of the legislature is to – make law
-The role of the judiciary is to – interpret law, test its validity, and apply it to particular facts
-But it is open to a sovereign legislature to issue instructions on how particular legislation is to be interpreted
-Every Canadian jurisdiction has an Interpretation Act that contains various rules applicable to statutes in general
-Interpretation rules are also found in general acts governing the making of regulations and statute revisions.
-The following from the federal Interpretation Act is typical of what is found in this types of legislation.
-Note that the federal Act applies only to federal legislation provincial and territorial legislation is governed but the relevant local Act:
-Interpretation Act 1985 (p.379)
2. Interpretation Rules in Acts and Regulations
-Individual acts and regulations often contain definitions, application provisions, purpose statements, and the like.
-The following excerpt from the Canadian Human Rights Act contains a number of such provisions:
-Canadian Human Rights Act 1985 (p.381)
3. Common Law Rules
-Statutory interpretation is rooted in the common law, in a body of principles, presumptions, and conventions known as the “rules of statutory interpretation.”
-These rules are not binding in the way the rules of the Criminal Code are binding. Rather, they operate as guidelines.
-They offer interpreters a checklist of relevant considerations, suggestion various lines of inquiry and ensuring that no possibility has been overlooked. They are relied on by council in developing arguments and by judges to justify outcomes in interpretation disputes.
-The following excerpt provides an introduction to the common law development of statutory interpretation:
Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes (2002): (p.382)
The evolution of statutory interpretation
is the culmination of centuries of statutory interpretation of common law courts
....a brief history on how the courts used statutory interpretation...
By the 19th and 20th centuries, 2 doctrines dominated judicial thinking: parliamentary sovereignty and the rule of law.
These paved the way for literal construction and the evolution of both the “plain meaning rule” and the “golden rule”
Plain meaning rule = a court is obliged to stick to the literal meaning of the legislative text in so far as the meaning is clear
While many courts and judges profess to be strongly committed to the plain meaning rule, this commitment inevitably wavers when the consequences of applying the plain meaning are found intolerable.
In such cases, resort to the so-called ‘golden rule’, which permits courts to depart from the ordinary meaning of a text to avoid absurd consequences.
As explained by Lord Wenseleydale in Gray v Pearson[1857], the golden rule is grounded in the supervisory and mediating roles of the courts.
As the SCC noted in Secession Reference [1998], the judicial mandate in a constitutional democracy involves not only respect for democratic institutions but also adherence to the rule of law and other common law values
The legitimacy of courts derives in part from their duty to ensure an appropriate observance of, and balancing among these norms.
Although the inconsistency between the plain meaning and the golden rule meaning is evidence, there are few judges who do not rely on both as need arises.
In R v Paul [1982], Lamer relied on the a passage from Maxwell on the Interpretation of Statutes, 12th ed., by P. St. J. Langan, to virtually redraft s.645(4)(c) of the Criminal Code.
-However, this willingness to modify meaning or sentence structure in order to avoid absurd results seems to be an unavoidable aspect of interpretation.
-Today, intention, textual meaning, and acceptability of consequences are all legitimate concerns of interpreters; each has a role to play in every interpretive effort.
Current theory and practice
In theory, courts give effect to the intention of the democratically elected legislature.
In practice, at least in hard cases, courts are requires to balance a number of competing considerations in accordance with their sense of what is appropriate in the circumstances.
When engaging in interpretations, some judges see themselves as textualists, other judges are intentionalists.
Driedger’s modern principle reflects an intentionalist approach.
There is also a category of interpreters who might be labelled as normativists
In deciding how a text should be interpreted, judges take all these impressions into account , giving each the weight that seems appropriate in the circumstances.
If the legislative text seems clear, if its meaning appears to be “plain”, then a pragmatic judge assigns significant weight to this apparent meaning. The clearer the text, the greater the weight it receives.........p.385 illustrating how much weight is given...
If the intention is set out in a reliable source, its formulation is fairly precise, there are no competing intentions and the implications for the facts of the case seem clear, then this factor receives considerable weight.
Finally, judges are concerned by violations of rationality, coherence, fairness and other legal norms. ......weight attaching to these factors...p386
______________________________________________________________________
C. RANGE OF INTERPRETATION ISSUES
-Determining the meaning of words in a legislative text is an important task of interpreters, a necessary first task, but it is only part of the work of interpretation.
-Table 1 (p.387) indicates the range of issues that arise in statutory interpretation and how they are addressed.
-p. 387-889 illustrates, with case examples, the types of arguments in response
Table 1: Issues Arising in Statutory Interpretation
Types of problem
Type of argument in response
Ambiguous, vague, or incomplete text
Disputed meaning
Evolving context
Static vs Dynamic interpretation
Overinclusive text
Non-application
Underinclusive text
Incorrigible gap in legislative scheme, OR supplement with common law rule or remedy
Contradictory or incoherent text
Corrigible mistake
Overlapping provisions
No conflict: Overlap vs Exhaustive code
Conflict: Paramountcy rule
-Obviously, the types of arguments surveyed above are not mutually exclusive.
-The issues that arise in applying legislation to a given set of facts can often be framed in more than one way.
-How an issue is framed is rhetorically significant and can often affect the outcome of a case
II. AN OVERVIEW OF THE RULES OF STATUTORY INTERPRETATION
-Numerous rules exist to guide statutory interpretation, the most important of which are reviewed below
A. RULES ABOUT MEANING
-The first thing an interpreter must do is read the text and form an impression of its meaning.
· Ordinary meaning rule
A meaning that spontaneously comes to the mind of a competent reader of legislature. This is presumed to be the meaning intended by Parliament, but the presumption can be rebutted by evidence to suggest that some other meaning was intended
· Technical meaning rule
It is presumed that legislatures use words in their popular, non-technical sense. But when legislation deals with a specialized subject and uses language that people governed by the legislation would understand in a specialized way, that specialized understanding is preferred over ordinary usage.
· Shared meaning rule
If one version of a bilingual text lends itself to 2 interpretations while the other version can plausibly bear only one of those interpretations, the interpretation that is shared should be adopted
· Original meaning rule
The meaning of the words used in the legislative text is fixed at the time of enactment, but its application to facts over time is not fixed. In static interpretation, the text is applied as it would have been when the legislation was first enacted. In dynamic interpretation, the text is applied in light of circumstances and assumptions existing at the time of application. Language that is technical, concrete attracts static interpretation. Language that is general or abstract attracts a dynamic interpretations.
· Plausible meaning rule
If the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing.
-The following judgement illustrates the application of the ‘technical meaning rule’:
_____________Re Witts and Attorney General for British Columbia [1982] ____________
-A person who claims that a legislative text has a technical meaning different from its popular, non-technical meaning, has the burden of establishing:
The technical meaning of the word or expression; and
That the technical meaning was intended in this context.
-Witts illustrates that evidence of technical meaning is offered by experts in the relevant field through testimony or affidavit evidence.
-Also, legal terms of art are considered technical terms. If a word of expression has both a popular meaning and a legal meaning, the former is presumed
-The courts do NOT require expert testimony to establish the legal meaning of a word or expression
B. PRESUMPTIONS RELIED ON TO ANALYZE THE MEANING OF A TEXT
-Courts make a number of assumptions about the way legislation is drafted, which influence the way the finished product is interpreted.
-The following are the most important of these assumptions:
· Straightforward expression
The legislature chooses the clearest, simplest, and most direct way of starting its meaning.
· Uniform expression
The legislature uses the same words and techniques to express the same meaning and different words and techniques to express different meanings
· No tautology/no redundancy (“the legislature does not legislate in vain”)
There are so superfluous words in legislation; every word, every feature of the test is there for reason and plays a meaningful role in the legislative scheme.
· Internal coherence
All the provisions of a legislative text fir together logically and work together coherently to achieve the purposes of the legislation
-These assumptions are the basis of a number of so-called maxims of interpretation, including:
· Implied exclusion
If something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded.
· Associated words
The meaning of a word of phrase is affected by the other or phrases with which it is linked in a sentence
· Limited class
When a list of things that all belong to an identifiable class is followed by a more general term, the general term may be read down to include only other things within the identifiable class. For example, in the phrase “hockey, skiing, and other sports,” “sports” may be read down to include only sports that are played in winter.
· The legislature would have said “x”
A legitimate basis for rejecting a proposed interpretation is to point out that had the legislature intended the proposed interpretation, it would have framed the legislation in a different way, as it did elsewhere in the Act or regulation or elsewhere in the stature book
-In the Witts case, the petitioner appealed unsuccessfully to the implied exclusion rule. He argued that when the legislature wished to depart from the ordinary meaning of a word, it did so expressly by setting out its preferred definition to the terms, as evidences but the definition of “age” in the regulation. Since “sex” was NOT identified, it should be govern ordinary meaning.
-The following judgement illustrates reliance on the ordinary meaning rule, the associated words rule, and the no tautology rule:
_____________________________R v Daoust [2004] ______________________________
Facts: Appeal by the Crown from a decision setting aside the convictions of the accused, Daoust and Bois, on charges of laundering proceeds of crime. The accused owned and managed a second-hand store. Suspecting that they were selling stolen goods, Quebec City police sent an undercover officer who sold goods to the accused which he hinted were stolen. At the final transaction, the accused told the officer that they would not accept further merchandise, as they could not always be helping him to steal. The accused were charged under s. 462.31 of the Criminal Code with having "transferred the possession of property with the intention to conceal or convert that property, knowing ... that ... that property was obtained ... as a result of the commission ... of an enterprise crime offence." They were found guilty of laundering proceeds of crime. The Quebec Court of Appeal set aside the convictions, and the Crown appealed to the Supreme Court of Canada.
HELD: Appeal dismissed. The English and French versions of s. 462.31 presented different variations of the offence of laundering proceeds of crime. The French version simply listed the acts constituting the actus reus of the offence, while the English version listed the same acts and added a prohibition against any other dealings with respect to the property or its proceeds. The English version could not be adopted because words that could broaden the scope of a penal statute could not be read in. Even if the legislative history showed that the English version was Parliament's true intent, the text of the statute did not support that intent. As well, where two versions of a provision were irreconcilable, the common meaning of the two versions was to be favoured. The common meaning was the narrower version, which was the French version.
Therefore, the actus reus of the offence had not been made out, as the activities described in the French version only concerned the person who originally had the object in his or her possession, and did not involve one who bought or received the property. The purchase was not a transfer of possession within the meaning of s. 462.31. The Crown could not seek to substitute a conviction for the offence of attempted laundering, as that offence was never alleged, and the indictment could not be amended at this stage of the proceedings.
[53] In the present case, the evidence shows that the respondents bought the
merchandise believing it to be stolen. However, in light of the foregoing, the act of
purchasing this merchandise is not the equivalent of “transfers the possession of”, which is the element of the offence specified in the indictment and which the Crown must prove. For this reason, it is my opinion that the respondents did not transfer the
possession of the property within the meaning of s. 462.31.
-Here, the court supports its understanding of “transfer” by claiming that it is the ordinary meaning of the word. It implicitly relied on the presumption in favour of ordinary meaning.
-To reject ordinary meaning, the court would have to establish that there were cogent grounds to belief that some other meaning was intended.
-Given the diverse experience of readers, which gives rise to different knowledge, impressions, assumptions, and values, is it possible to suppose that ordinary meaning is the same for everyone?
-To determine the ordinary meaning of language, courts rely on their own linguistic intuitions.
-Dictionaries can only indicate a range of the meanings a word is capable of bearing; they can never indicate what a word means in a particular context
-Bastarche J relies on both ordinary language and dictionaries in ‘Black’s Law Dictionary’ to establish the ordinary meaning of “transfer”
C. PURPOSE AND SCHEME ANALYSIS
-All legislation is enacted for a purpose – to achieve a particular outcome by imposing new obligations or prohibitions or creating a new rights or privileges.
-This feature of legislation is reflected in the following rules:
· Legislative purpose
Interpreters must always try to determine the purposes of legislation and, in so far as the text permits, adopt an interpretation that promotes or at least consistent with those purposes. Interpretations that would tend to defeat legislative purpose are considered absurd.
The vaguer the language of the legislative text, the more discretion is conferred on the tribunal or court that applies it, and the greater is the importance of purpose in adopting an appropriate interpretation.
· Interpretation Acts
The Interpretation Act of every Canadian jurisdiction includes a provision that directs interpreters to give every enactment “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” In other words, an interpretation that promotes the purpose of legislation is to be preferred over strict construction. Notice, however, that when legislation has been drafted in an overly broad fashion, a narrow interpretation will be one that best ensures the attainment of its objects.
· Legislative scheme
The provisions of an Act are presumed to work together as parts of a coherent scheme designed to implement the legislature’s goals. It is often helpful to look at the titles, headings, and subheadings and at the sequence of marginal or sectional notes to get an indication of the scheme.
To determine how a particular provision contributes to the scheme, ask yourself why the provision was included. Knowing how a provision contributes to a scheme generally is a good indicator of how it should be interpreted.
___________________________R v Chartrand [1994] _____________________________
Facts: The accused, aged 43, was hitting golf balls in a field in the school yard when T, aged 8, and his friends A and J, asked him if they could catch the balls with their baseball gloves. The young boys had first met the accused in that same field the previous summer, but only knew him by his first name. They played for a while and then A and J left to get refreshments. When they returned, they found T and the accused in a wooded area at the edge of the school yard. The accused was taking pictures of T and, when the two boys began to interfere with that activity, the accused became annoyed and asked them several times to leave him and T alone. Eventually, the accused suggested to T that they could go to a nearby bridge. Although A and J told T not to go, T entered the accused's car and left with him. They drove approximately 2.9 km, stopping at various locations to take pictures. When T's father was informed of the situation by J's mother, he began a search with the help of others, including a police officer. T's father found his child sometime later and confronted the accused. The latter indicated that he had only intended to take pictures of T as a surprise for T's parents. As a consequence of these events, the accused was charged with several offences, including abduction of a person under 14 years of age contrary to s. 281 of the Criminal Code.
At trial, at the close of the Crown’s case, the trial judge granted the defence’s motion for a directed verdict on the s. 281 charge. He found that the Crown had failed to prove the essential elements of the offence as there was no evidence upon which a jury properly instructed could arrive at the conclusion that the accused intended to deprive T’s parents of the possession of their child by an unlawful act.
The Court of Appeal dismissed the Crown's appeal.
SCC HELD: The appeal should be allowed and a new trial ordered.
The word "unlawfully" (illégalement) which appears in the English, but not in the French, text of s. 281 of the Code does not entail evidence beyond that of the taking by a person without legal authority over the child. The word "unlawfully" has generally been interpreted to mean "without lawful justification, authority or excuse" and in s. 281 is surplusage as the general defences, justifications and excuses available under the Code apply to the offence of abduction just as they do for other offences generally. This interpretation of the word "unlawfully" is in accord with the purpose of the section, which is to prevent and punish a stranger intending to deprive the parent, guardian or person who has the lawful care or charge of the child of the ability to exercise physical control over the child. It also accords with the protection of those persons who innocently take a child out of the control of the person lawfully in charge of the child and who may well be able to provide justification for their conduct. Retaining the word "unlawfully" in the English text of s. 281 was a mere oversight and the French text reflects the true intent of Parliament when it redrafted in 1982 the section to apply only to abduction by strangers. Consequently, there was no necessity for the Crown to prove an additional unlawful act or some element of unlawfulness beyond the taking of a child by a person who did not have lawful authority over the child and the trial judge was in error in so interpreting s. 281 of the Code.
Although the proof of intent under s. 281 can be met by the intentional and purposeful deprivation of the parent's control over the child, the mens rea can be established by the mere fact of depriving the child's parent (or guardian or any other person having the lawful care or charge of the child) of possession of the child through the taking, as long as the trier of fact draws an inference that the consequences of that taking are foreseen by the accused as a certain or substantially certain result from the taking, independently of the purpose or motive for which such taking occurred.
Given the proper interpretation of s. 281 and the evidence adduced, the trial judge erred in granting the motion for a directed verdict and the Court of Appeal should have allowed the appeal. There was evidence upon which a reasonable jury properly instructed could conclude that the accused would have known or foreseen that his actions in taking or enticing the 8‑year‑old boy would be certain or substantially certain to result in his parents being deprived of their ability to exercise control over him.
-Notice the several ways in which L’Heureux-Dube determines the purpose of s.281
-First she analyzes the similarities and differences among the several provisions dealing with abduction and infers the rationale for each provision
-Next she considers the social context in which the legislation was amended and the mischief it was meant to cure.
-She also briefly refers to the purpose of criminal law generally, citing as authority a number of standard texts
-Notice also that L’Heureux-Dube relied on both a disputed word argument (“unlawfully” in s.281 means without lawful excuse) and a corrigible mistake argument (retaining “unlawfully” in English text was a mere oversight, a mistake).
D. MISTAKE AND GAPS IN THE LEGISLATIVE SCHEME
· Corrigible mistakes
Although the legislature is presumed not to make mistakes, the presumption is rebutted by persuasive evidence that the text does not accurately reflect the rule the legislature intended to enact. The courts have jurisdiction to reflect such mistakes, unless the mistake amounts to a gap in the legislative scheme
· Incorrigible gaps
The courts almost always deny jurisdiction to cure a gap in a legislative scheme or to otherwise cure underinclusive provisions by making them apply to facts outside the ambit of the language of the text. Curing an underinclusive scheme or provision amounts to “reading in,” which is generally considered a form of judicial legislation, as opposed to “reading down,” which is not
· Supplementing legislation by reliance on common law or civil law
Although the courts cannot cure underinclusive legislation by expanding its scope beyond what the text allows, it can rely on supplemental sources of law to complement what the legislative scheme provides. In doing so, it must often address the difficult question of the relationship between statute law and common law.
E. PRESUMPTIONS OF LEGISLAITVE INTENT
-The presumption of legislative intent are formal expressions of evolving common law norms.
-One of the recurring issues in statutory interpretation is whether the courts should apply the same rules and techniques to all legislation, regardless of its subject matter or purpose.
-Legislation what interferes with individual rights or freedoms is considered “penal” and attracts a “strict” construction.
-Legislation that cures mischief or confers benefits is considered “remedial” and attracts a “liberal” construction.
-In addition to these, the courts control legislative initiatives by imputing to the legislature an intention to abide by norms that the courts consider important. These are called the ‘presumption of legislative intent’ (see pg.404 for a list of these presumptions)
F. AVOIDING ABSURDITY
-It is presumed that the legislature does not intend its legislation to produce absurd consequences. Thus, an interpretation that avoids such consequences is preferred.
-Forms of absurdity are:
Irrational distinctions; contradictory/anomalous effects; defeating legislative purpose; undermining the efficient application of legislation; and violating the norms of justice/fairness
G. RELATION TO OTHER LEGISLATIVE AND OTHER SOURCES OF LAW (p205)
· Constitutional law
· Regulations
· Regulated legislation (statutes)
· The statute book
· Common law
· International law
H. EXTRINSIC AIDS
-Resolving interpretation issues can often be assisted by so-called extrinsic aids, including the following:
· Legislative source
· Legislative history
· Legislative evolution
· Expert opinion
-The rules governing the admissibility and use of this material are complex and in a state of flux.
-In practice, the courts tend to accept whatever material is offered, provided it is relevant to the issues before the court and will not take the other party by surprise.
-However, the appellate courts have not gone out of their way to establish clear principles and guidelines in this area. Courts sometimes decline to look at this material if it contradicts what appears to be the “plain meaning” of the legislative text.
III. SOME ILLUSTRATIONS
-The 4 cases set out below illustrate how the courts tackle statutory interpretation.
_____________________________ R v McIntosh [1995] ____________________________
Facts: The accused, a disc jockey, had given the deceased, who lived in the same neighbourhood, some sound equipment to repair. Over the next eight months the accused made several attempts to retrieve his equipment, but the deceased actively avoided him. On the day of the killing, the accused's girlfriend saw the deceased working outside and informed the accused. The accused obtained a kitchen knife and approached the deceased. Words were exchanged. According to the accused, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the accused. The accused reacted by stabbing the deceased with the kitchen knife. At his trial on a charge of second degree murder the accused took the position that the stabbing of the deceased was an act of self‑defence.
HELD: appeal dismissed. Section 34(2) was clearly available to an initial aggressor, as it did not contain the explicit limitation that appeared in s. 34(1), "without having provoked the assault". Using a contextual approach to statutory interpretation, those words should not be read in. Here, the trial judge erred in so narrowing s. 34(2) to preclude accused's reliance upon it. Where the language of a provision was clear and capable of only one meaning, it had to be enforced, however absurd, harsh or contrary to common sense the result may be. Even assuming that absurdity itself was sufficient to create ambiguity, a literal interpretation of s. 34(2) was to be preferred, as the direct and potentially profound impact of the Code on personal liberty was such that it required an interpretive approach that was most favourable to accused. Section 37 served a gap-filling role, providing the basis for a defence where ss. 34 and 35 were not applicable. As accused could advance scenarios where ss. 34 as interpreted herein and 35 would afford him a defence, there was not room for s. 37 in this case.
Lamer – (majority)
[34] ...I would adopt the following proposition: where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.
[41] Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.
[42] What is most important in this case is that s. 34(2) applies on its face to initial aggressors, and is therefore open to such an interpretation. This interpretation is more favourable to accused persons than the alternative advanced by the Crown. Moreover, this interpretation is consistent with the clear wording of s. 34(2), thus providing certainty for citizens. Although I appreciate the efforts of the Crown to underscore the problems with the Criminal Code's self-defence regime through a broad historical, academic and policy-based analysis, I suspect that very few citizens are equipped to engage in this kind of interpretive approach. Rare will be the citizen who will read ss. 34 and 35, and recognize the logical inconsistencies as between the two provisions. Rarer still will be the citizen who will read the provisions and conclude that they are inconsistent with the common law, or with Parliament's intention in 1892, or with margin notes. Given that citizens have to live with the Criminal Code, and with judicial interpretations of the provisions of the Code, I am of the view that s. 34(2) must be interpreted according to its plain terms. It is therefore available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself.
[47] With respect, Moldaver J. erred in instructing the jury at the respondent's trial that s. 34(2) was not available to an initial aggressor. I therefore am in agreement with the Ontario Court of Appeal. The appeal is dismissed, the respondent's conviction set aside and a new trial.
McLachlin – (dissent)
[48] This case raises the issue of whether a person who provokes another person to assault him can rely on the defence of self-defence, notwithstanding the fact that he failed to retreat from the assault he provoked. The Chief Justice would answer this question in the affirmative. I, with respect, take a different view.
[50] It was open to the jury to find, in this scenario, that McIntosh had provoked the assault by threatening the deceased while armed with a knife. This raised the question of which of the self-defence provisions of the Criminal Code apply to a person who provokes the aggression that led to the killing. The answer depends on the interpretation accorded to ss. 34 and 35 of the Criminal Code, R.S.C., 1985, c. C-46, which codify self-defence in Canada. Section 35 clearly applies where the accused initiated the aggression; however, it contains a requirement that the accused have attempted to retreat, and might not have assisted McIntosh. Sections 34(1) and 34(2), on the other hand, contain no requirement to retreat. Section 34(1) clearly does not apply to the initial aggressor. The debate, in these circumstances, focused on s. 34(2). If McIntosh could avail himself of s. 34(2), he would be entitled to rely on self-defence, notwithstanding findings that he provoked the fight and did not retreat.
[61] In summary, then, I take the view that this Court cannot evade the task of interpreting s. 34(2). The Court's task is to determine the intention of Parliament. The words of the section, taken alone, do not provide a clear and conclusive indication of Parliament's intention. It is therefore necessary to look further to determine Parliament's intention to the history of the section and the practical problems and absurdities which may result from interpreting the section one way or the other. These considerations lead, in my respectful view, to the inescapable conclusion that Parliament intended s. 34(2) to apply only to unprovoked assaults. This in turn leads to the conclusion that the trial judge was correct in declining to leave s. 34(2) with the jury.
[75] I conclude that the intention of Parliament is clear and that s. 34(2), read in its historical context, applies only to unprovoked assaults.
[79] The interpretation of ss. 34 and 35 which I have suggested is supported by policy considerations....
[83] In summary, the history, the wording and the policy underlying s. 34(2) all point to one conclusion: Parliament did not intend it to apply to provoked assault. It follows that the trial judge did not err in limiting s. 34(2) in this way in his instructions to the jury.
-Here, Lamer sees the interpretation problem as one of disputed meaning, while McLachlin sees it as a corrigible mistake.
-The majority and dissenting judgements illustrate the clash between the textualist and intentionalist approaches to interpretation.
-Lamer insists that the courts must give effect to the “plain meaning” of a legislative text, even if this leads to absurdity. McLachlin believes that the judicial mandate is to give effect to Parliament’s intent, as inferred not only from the language of the text but also from aids such as the evolution of the legislation from common law to its current formulation.
-The following is the leading case on statutory interpretation. It sets out the preferred approach of the SCC and has been cited for this purpose in countless subsequent judgements:
_____________________Re Rizzo and Rizzo Shoes Ltd. [1998] ______________________
Facts: A bankrupt firm’s employees lost their jobs when a receiving order was made with respect to the firm’s property. All wages, salaries, commissions and vacation pay were paid to the date of the receiving order. The province’s Ministry of Labour audited the firm’s records to determine if any outstanding termination or severance pay was owing to former employees under the Employment Standards Act (“ESA”) and delivered a proof of claim to the Trustee. The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly creates no entitlement to severance, termination or vacation pay under the ESA.
The Ministry successfully appealed to the Ontario Court (General Division) but the Ontario Court of Appeal overturned that court’s ruling and restored the Trustee’s decision. The Ministry sought leave to appeal from the Court of Appeal judgment but discontinued its application. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzo’s creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested and were granted an order granting them leave to appeal.
Issue: whether the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA.
HELD: The appeal should be allowed.
At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording of the legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontario’s Interpretation Act provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
The objects of the ESA and of the termination and severance pay provisions themselves are broadly premised upon the need to protect employees. Finding ss. 40 and
40a to be inapplicable in bankruptcy situations is incompatible with both the object of the ESA and the termination and severance pay provisions. The legislature does not intend to produce absurd consequences and such a consequence would result if employees dismissed before the bankruptcy were to be entitled to these benefits while those dismissed after a bankruptcy would not be so entitled. A distinction would be made between employees merely on the basis of the timing of their dismissal and such a result would arbitrarily deprive some of a means to cope with economic dislocation.
The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise. Section 2(3) of the Employment Standards
Amendment Act, 1981 exempted from severance pay obligations employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent. Section 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. If this were not the case, no readily apparent purpose would be served by this transitional provision. Further, since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.
When the express words of ss. 40 and 40a are examined in their entire context, the words “terminated by an employer” must be interpreted to include termination resulting from the bankruptcy of the employer. The impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Such an interpretation would defeat the true meaning, intent and spirit of the ESA. Termination as a result of an employer's bankruptcy therefore does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the Bankruptcy Act for termination and severance pay in accordance with ss. 40 and 40a of the ESA. It was not necessary to address the applicability of s. 7(5) of the ESA.
Iacobucci –
[1] This is an appeal by the former employees of a now bankrupt employer from an order disallowing their claims for termination pay (including vacation pay thereon) and severance pay. The case turns on an issue of statutory interpretation. Specifically, the appeal decides whether, under the relevant legislation in effect at the time of the bankruptcy, employees are entitled to claim termination and severance payments where their employment has been terminated by reason of their employer's bankruptcy.
[41] In my view, the impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Further, I believe that such an interpretation would defeat the true meaning, intent and spirit of the ESA. Therefore, I conclude that termination as a result of an employer's bankruptcy does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the BA for termination and severance pay in accordance with ss. 40 and 40a of the ESA.Because of this conclusion, I do not find it necessary to address the alternative finding of the trial judge as to the applicability of s. 7(5) of the ESA.
[42] I note that subsequent to the Rizzo bankruptcy, the termination and severance pay provisions of the ESA underwent another amendment. Sections 74(1) and 75(1) of the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O.
1995, c. 1, amend those provisions so that they now expressly provide that where employment is terminated by operation of law as a result of the bankruptcy of the employer, the employer will be deemed to have terminated the employment. However, s. 17 of the Interpretation Act directs that, “[t]he repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law”. As a result, I note that the subsequent change in the legislation has played no role in determining the present appeal.
[43] I would allow the appeal and set aside paragraph 1 of the order of the Court of Appeal. In lieu thereof, I would substitute an order declaring that Rizzo's former employees are entitled to make claims for termination pay (including vacation pay due thereon) and severance pay as unsecured creditors. ...
-Iacobucci appears to agree with the Ontario CA that the language of ss.40 and 40a of the Employment Standards Act plainly excludes loss of employment caused by bankruptcy.
-Notice that determining whether a text is “plain” or “ambiguous” is a linguistic judgement based on personal intuition
-Reading Down = accepting an interpretation of a provision that is narrower in scope than the ordinary meaning of the text would support. When a provision is read down, words of limitation or qualification are effectively added to the text, for one of the following reasons:
-the court is giving effect to limitations or qualifications that are implicit in the text or the scheme of the legislation it is therefore, giving effect to the legislature’s intent;
-the court is refusing to apply the legislation to situations that are outside the mischief the legislation was meant to address; it is, therefore, refusing to exceed the legislature’s intent; or
-the court is relying on a presumption of legislative intent.
In each case, the additional words narrow the scope of the provision and are meant to reflect the legislature’s intent.
-Reading In = the court expands the scope of a legislative provision or fills a gap in a legislative scheme, thus making the legislation apply to facts that it would not otherwise encompass given the limits of the language used in the provision or scheme. Usually, courts refuse to read in, on the ground that it amounts to amendment rather than interpretation
-The the Rizzo judgement, the SCC appears to repudiate the textual approach endorsed by the majority of the court in McIntosh.
-In both cases, the court fails to examine the French version of the legislation.
-In more recent cases, the court has served notice that it expects counsel to consider both language versions of bilingual legislation when arguing interpretation issues before the court. This current position is set out in:
________Medovarski v Canada (Minister of Citizenship and Immigration) [2005] _______
Facts:
M and E, two permanent residents, were ordered deported for serious
criminality. They each appealed to the Immigration Appeal Division of the
Immigration and Refugee Board and their removal orders were automatically stayed.
Both appeals were discontinued as a result of a transitional provision (s. 196) of the
new Immigration and Refugee Protection Act (IRPA), which took away the right to
appeal an order for removal unless a party had, under the former Act, been “granted
a stay”. In each case, the trial judge set aside the decision to discontinue the appeal.
The Federal Court of Appeal allowed the Minister of Citizenship and Immigration’s
appeal in both cases, holding that the purpose of the IRPA’s transitional provision was
to deny a right of appeal in the case of an automatic stay.
HELD: Appeals dismissed. Section 196 required dismissal of the residents' appeals. An objective of the Act was to prioritize security and to efficiently remove from the country persons who have engaged in serious criminality. The French version of the Act seemed to apply to both an automatic and an actively ordered stay, but the narrower English version applied only to actively granted stays. The deportation of a non-citizen did not implicate the liberty and security interests protected by s. 7 of the Charter or breach principles of fundamental justice.
Section 196 of the IRPA, properly interpreted, applies only to actively granted stays. The objectives of the IRPA, as expressed in s. 3, indicate an intent to prioritize security. In keeping with these objectives, the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible (s. 36); if they have been sentenced to a prison term of more than two years, they are denied a right to appeal their removal order (s. 64). The purpose in enacting the IRPA, and in particular s. 64, was to efficiently remove from the country persons who have engaged in serious criminality. Since s. 196 refers explicitly to s. 64, the transitional provisions should be interpreted in light of these legislative objectives. With respect to the text of s. 196, although the French version seems to apply to both an automatic and an actively ordered stay, the common meaning of the English and French versions of s. 196, which is normally the narrower version, is in this case the English version, which applies only to actively granted stays. This interpretation, which accords with
Parliament’s general object, is reinforced by the absurd effect of the broader interpretation of s. 196. If s. 196 was applicable to automatic stays, it would effectively become redundant and be reduced to an essentially meaningless statutory provision. It would also create in the context of s. 49(1) a broad exemption for inadmissible persons in the country yet accord none to similar persons outside Canada.
The deportation of a non-citizen cannot in itself implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.
Even if liberty and security of the person were engaged, any unfairness resulting from
s. 196 would be inadequate to constitute a breach of the principles of fundamental justice.
-Under the Canadian Constitution, legislation MUST BE in both French and English by Parliament and by the legislatures of Manitoba, New Brunswick, and Quebec.
-In Ontario, the legislature has enacted legislation providing for bilingual enactment and the equal authenticity of both language versions. The legislation of the territories follows the same model.
-In R v Daoust [2004], the SCC held that when one version of bilingual legislation is broader in scope than the other, the narrower version represents the shared meaning and should prevail unless there is evidence that the legislature intended the broader meaning.
(BUT most commentators would urge the courts to take a more nuanced/toned approach)
-In Daoust, the court acknowledged that the shared meaning is merely presumed and can be rebutted.
-In every case, the shared meaning must be tested against other indicators of legislative intent, both actual and presumed.
-Surprisingly, in Daoust, the court disregarded strong evidence that the legislature intended to enact the rule embodied in the broader English version. Presumably, the court was influenced by the fact that this was penal legislation and, therefore, to be strictly construed.
___________________Canada (Attorney General) v Mossop [1993] ___________________
Facts: In 1985, Brian Mossop, a gay man from Toronto, sought breavement leave from his employer, the Canadian federal government's Translation Bureau, to attend the funeral of his same-sex partner's father. His employer denied him leave under the collective agreement on the grounds that his partner was not "immediate family". Mossop took his employer before the Canadian Human Rights Commission. Sexual orientation was not a prohibited ground of discrimination at that time, so he argued that he had been discriminated against on the basis of his "family status", under section 3 of the Canadian Human Rights Act.
The Canadian Human Rights Tribunal found in his favour, but the government appealed to the Federal Court and the favourable finding was overturned. Mossop appealed to the Supreme Court, but it upheld the finding of the Federal Court.
SCC HELD: The majority held that absent a Charter challenge of the constitutional validity of the Canadian Human Rights Act, there was no grounds for a claim.
L'Heureux-Dube (dissent)
found that there was basis to read sexual orientation into the term "family status" within the Canadian Human Rights Act. She argued that the meaning of family should be read purposively and that given the growing number of non-traditional families there is a need to reconsider its meaning in light of these changes. She was joined on this point by McLachlin J. and Cory J., who both agreed that the relationship of Mossop and his partner fell within the scope of the term "family status".
-In this case, the problem before the court is the disputed meaning of certain language in s.3 of Canadian Human Rights Act.
-Both Lamer and L’Heureux-Dube address the question of legislative intent.
-When Parliament added the words “family status” to the English version of the Act in 1983, according to Lamer, it deliberately declined to extend the Act’s protection to sexual orientation, but according to L’Heureux-Dube, it chose to confer discretion of the Human Rights Tribunal to define “family statue” in any way that would achieve the purposes of the Act.
NOTE: suppose that Parliament declined to include same-sex couples within “family status” in 1983, and again in 1993 when the Mossop case was decided. Would it nonetheless be appropriate for the court to support the tribunal’s interpretation of this ecpression?
4. BASIC ARCHITECTURE, AND WORKINGS, OF THE CANADIAN LEGAL SYSTEM:
v Chapter 8à “Constraints on Legislative and Administrative Action”
-This chapter explores the role that the judiciary plays in constraining legislative and administrative or executive action.
-In a democratic society, governmental actors face a wide range of constraints on their efforts to pursue their understanding of the public good.
-These constraints include:
limits on the support available from political allies;
the need to address criticism from political opponents;
the scrutiny of the media and affected interest groups;
the practical constraints imposed by limited financial resources, personnel, or information needed to pursue an initiative effectively; and
sometimes the requirement of cooperation from other levels of government, either domestically or internationally.
-These legal limits are likely to be especially important for individuals and minority interest groups who are unable to achieve their aims in the political or bureaucratic arena.
I. THE ROLE OF CONSTITUTIONAL JUDICIAL REVIEW IN A
DEMOCRATIVE SOCIETY
-Here, we consider the role that judicial review using the Constitution, plays in a democratic society.
-Even if one accepts the legitimacy of JR as a general proposition, it is still necessary to explore the appropriate limits of this role, and to consider how judges might attempt to reconcile this aspect of their role with our legal system’s general commitment to democratic government.
A. THE JUSTIFICATION FOR CONSTITUTIONAL JUDICIAL REVIEW
-The case below offers a principled account of constitutional supremacy and the role the judiciary plays in ensuring that the written Constitution prevails over ordinary legislation.
-Marshall’s argument in support of constitutional supremacy is compelling:
_________________________Marbury v Madision [1803]___________________________
In February 24, 1803, the Court rendered a unanimous (4-0) decision, that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court. Marshall presented the case as raising three distinct questions:
- Did Marbury have a right to the commission?
- Do the laws of the country give Marbury a legal remedy?
- Is asking the Supreme Court for a writ of mandamus the correct legal remedy?
In deciding whether Marbury had a remedy, Marshall stated: "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles on which Marbury relies is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next described two distinct types of Executive actions: political actions, where the official can exercise discretion, and purely ministerial functions, where the official is legally required to do something. Marshall found that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provided him a remedy.
A federal court has a "special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" If a court does not have the power to hear a case, it will not issue dicta. Consequently, with exceptions not applicable here, a federal court must decide whether it has jurisdiction before discussing the merits of the case. Chief Justice Marshall, however, did not address jurisdictional issues until addressing the first two questions presented above. Because of the canon of constitutional avoidance (i.e., where a statute can fairly be interpreted so as to avoid a constitutional issue, it should be so interpreted), courts generally deal with the constitutional issues only if necessary. In this case, the jurisdictional issue was a constitutional one.
In analyzing the third question, Marshall divided the question further, asking if a writ of mandamus was the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought could issue from the Supreme Court. Concluding quickly that since a writ of mandamus, by definition, was the correct judicial means to order an official of the United States (in this case, the Secretary of State) to do something required of him (in this case, deliver a commission), Marshall devotes the remainder of his inquiry at the second part of the question: "Whether it [the writ] can issue from this court."
Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the Constitution, which defines the Supreme Court's original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act conflict.
This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." Part of the core of this reasoning is found in the following statements from the decision:
“
It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions.
”
"In denying his request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid." Marbury never became a Justice of the Peace in the District of Columbia
-With the Canadian Constitution in 1982, the principle of constitutional supremacy was expressly enshrined in s.52(1) of Constitution Act 1982, which reads: “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 or effect”.
B. THE LIMITATIONS OF JUDICIAL REVIEW
1. The Issue of Justiciability
-In addition to providing the SCC with an opportunity to explore the principle of constitutional supremacy, the Operation Dismantle case also tested the limits of the role that courts play in weighting governmental measures designed to protect national security against the standards imposed by the Constitution:
_______________________Operation Dismantle v The Queen [1985] _________________
Facts: where the court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory.
It was argued that the use of cruise missiles by the US government increased the risk of nuclear war and that Canada's participation made Canada a more likely target.
HELD: Struck down claim.
Dickson (majority) –
struck down the claim on the basis that given the unpredictability of foreign policy decisions of sovereign nations, suggestion of an increase in danger can only be speculative. It would be impossible to prove a causal link between the testing and the increased threat.
Wilson J.
dismissed the use of the political question in Canadian law. She examined the jurisprudence behind the doctrine identified its basis in the core US constitutional principle of the separation of powers. She distinguished this from Canadian constitutional law where separation is not a core principle, but rather is only secondary. Instead, there is a foundation in overlap between the branches as demonstrated in the system of responsible government.
Wilson concludes that section 24 of the Charter requires judicial review of the executive branch of the government. For an issue to be justiciable the question must raise a legal issue. She further noted that exercise of the royal prerogative can be judicially reviewed under section 32 of the Charter
2. The Issue of Enforcement
-While Canadian judges accept the proposition that the Constitution is supreme and the corollary that it is their duty to interpret the Constitution and invalidate any legislation that is inconsistent with the Constitution, the practical reality is that courts normally have to rely on the executive and legislative branches of government for the enforcement of their decisions.
-Canadian courts are usually able to rely on the other branches of government for this support, but it is not inevitable that this will always be the case.
-Consider the following case where the SCC were split over the scope of the judicial power to grant a form of “structural injunction” as a remedy under s.24(1) of Charter for a breach of the executive branch of a positive Charter right.
-The trial judge had ordered the government of Nova Scotia to use its “best efforts” to build a French-language school or schools to comply with its duties under the minority language rights provision in s.23 of Charter. The judges had added to his order a requirement that the government provide him with periodic reports on its progress in this regard. A five-justice majority of the court concluded that this remedy came within a superior court’s authority under s.24. The minority argued that such an injunction usurped the role of the executive by placing the judiciary in the position of directing the implementation of law and government policy:
_____________Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] _________
Facts: Appeal by Francophone parents from a decision allowing an appeal by the Province of Nova Scotia from a portion of an order. The parents applied for an order directing the provision of French-language secondary schools in Nova Scotia. They presented evidence that assimilation was reaching critical levels, and of delay by the government in providing such schools. The judge found that the Government had failed to prioritize the parents' minority language education rights under section 23 of the Canadian Charter of Rights and Freedoms. He ordered the Province to provide school facilities by specified dates. The judge retained jurisdiction to hear reports by the Province regarding compliance with the order. The Province appealed the reporting order.
The Court of Appeal held that the order violated the common law concept of functus officio, and that the Charter did not grant jurisdiction to the court to enforce its remedies. The reports had been given to the judge as ordered and the schools had been built. As a result, the Province argued that the appeal was moot.
Issue: Having found a violation of s.23 of Charter and having ordered that the Province makes its best efforts to provide homogeneous French-language facilities and programs by particular dates, did the NS SC have the authority to retain jurisdiction to hear reports from the Province on the status of those efforts as part of its remedy under s.24(1) of Charter?
SCC HELD: Appeal allowed, and order restored. While the SCC split on what constitutes an appropriate usage of section 24(1), the majority favoured a section 24(1) with broad, flexible capabilities.
While the appeal was moot, it was appropriate for the Court to hear it. There was still an adversarial context, the decision would provide guidance on the remedies available under section 24 of the Charter and the determination of the issue was an adjudicative rather than an executive or legislative decision. The remedial power to fashion remedies under section 24 could not be abrogated by statute or common law. Under section 24(1), the court was permitted to craft any remedy it considered appropriate and just. The meaningful protection of Charter rights, particularly the enforcement of section 23 language rights, permitted the introduction of novel remedies. The remedy chosen by the trial judge was appropriate and just. He selected an effective remedy that meaningfully vindicated the appellants' section 23 rights, bearing in mind the serious rates of assimilation and the history of delay in the provision of French-language education. The order was a properly judicial one. The judge's retention of jurisdiction did not include any power to alter the disposition of the case, or interfere with any appeal rights. It was not unfair to the Government and was not so vaguely worded as to render it invalid.
[133] We would reiterate, at this point, the importance of clarity and certainty in the provisions of a court order. If the trial judge had precisely defined the terms of the remedy, in advance, then the ensuing confusion surrounding his role may not have occurred. Moreover, by complying with this essential element of fair procedure, he may have been able to avoid the constitutional breach of the separation of powers that followed.
NOTE: While construction had been completed by the time the minority language families appealed their case to the SCC, Iacobucci and Arbour, writing for the majority of the Court, declined to set aside the case for mootness. They went on to vindicate the position of Justice LeBlanc and overturn the Court of Appeal.
-Enforcement of the Constitution by the courts can present both practical problems and questions of principle.
-The following excerpt from the SCC’s decision in the Manitoba Language Reference illustrates the difficulty Canadian courts have faced in finding a principled (and constitutionally sensible) way to address the consequences of a sweeping legislative disregard of constitutional rules:
_______Reference re Language Rights Under Section 23 of Manitoba Act 1870 and______
_____________________ Section 133 of Constitution Act 1867 [1985]_________________
Pg 477-484
3. The Issue of Legitimacy
-The type of governmental intransigence described in the Manitoba Language Reference is very much the exception in Canada’s constitutional history.
-The more immediate concern for Canadian judges in exercising their mandate to uphold the Constitution is to identify principles that appropriately shape the exercise of this authority. This task has proved more challenging since the advent of the Canadian Charter in 1982.
-It is true that on the whole, the Charter, and the court’s interpretation of it, has been largely popular. Yet, because courts now regularly strike down (and reinterpret by “reading in”) parliamentary statues, they have sparked a wave of academic and political critiques that question, and sometimes denounce, their performance.
-Most criticisms of constitutional judicial review can be reduced to 2 core complaints:
(1) under the banner of constitutional supremacy, courts have usurped power that is properly the domain of Parliament and the provincial legislatures...and the argument is that the courts have expanded their proper role of interpreting the Constitution (particularly the Charter), and have thereby unduly shrunk the zone of parliamentary supremacy
(2) is sparked by the substantive approach taken by the courts to particular rights. These are rights that may protect unpopular elements of society, such as people convicted of criminal offenses, or prompt decisions, such as protection for gays and lesbians, disliked by those holding particular political, social, or religious views.
NOTE: a core question lies at the heart of BOTH these complaints: in rendering their constitutional decisions, how much deference should courts show elected officials?
-In the following case from the SCC’s majority decision, Iacobucci uses the analogy of a dialogue to describe the relationship between courts and legislatures under the Charter:
_____________________________Vriend v Alberta [1998]__________________________
Facts: Appeal by Vriend and others from a decision of the Court of Appeal allowing Alberta's appeal from a decision allowing Vriend's application for a declaration that the Individual Rights Protection Act violated section 15(1) of the Charter by omitting sexual orientation as a prohibited ground of discrimination. Cross-appeal by Alberta. King's College fired Vriend because he was homosexual. The Alberta Human Rights Commission refused to hear his complaint. At the trial, the appellants successfully sought to add sections of the Act that did not specifically deal with the issue of discrimination in employment. The Court of Queen's Bench Judge read up the sections of the Act to include sexual orientation as a ground of discrimination. The Court of Appeal held that the Charter did not apply and if it did, the remedy of reading in was not appropriate.
HELD: The SC concluded that the Alberta’s legislature’s failure to include sexual orientation as a prohibited ground of discrimination in the Alberta Individual Rights Protection Act violated the appellants’ right to equality as protected by s.15 of Charter and that this action was not justified under s.1. The majority also concluded that the appropriate remedy for this violation was to “read in” sexual orientation as a prohibited ground of discrimination for purposes of the Act
Appeal allowed and cross-appeal dismissed. The appellants had standing to challenge the validity of all of the relevant provisions. There was a serious issue raised as to the invalidity of the legislation, the appellants had a genuine interest in its validity, and there was no reasonable and effective way to bring the validity of the disparate sections to the court. The Charter applied to challenges to an Act of the legislature that was underinclusive as a result of an omission. The Act regulated private activity but this did not preclude the application of the Charter. In its underinclusive state, the Act created a distinction that resulted in the denial of the equal benefit and protection of the law on the basis of sexual orientation, an analogous ground to those enumerated in section 15. The serious discriminatory effects of the omission reinforced that conclusion. The legislation was not saved by section 1. There was no evidence that the omission had a pressing and substantial objective. Reading sexual orientation into the Act minimized interference with its legitimate legislative purpose. “Reading in” or “striking out” would always involve interference with legislative intention but this was permissible given that the Alberta Legislature had stated that it intended to defer to the courts on this issue.
[1] CORY and IACOBUCCI JJ.:— In these joint reasons Cory J. has dealt with the issues pertaining to standing, the application of the Canadian Charter of Rights and Freedoms, and the breach of s. 15(1) of the Charter. Iacobucci J. has discussed s. 1 of the Charter, the appropriate remedy, and the disposition.
Iacobucci –
[134] To respond, it should be emphasized again that our Charter's introduction and the consequential remedial role of the courts were choices of the Canadian people through their elected representatives as part of a redefinition of our democracy. Our constitutional design was refashioned to state that henceforth the legislatures and executive must perform their roles in conformity with the newly conferred constitutional rights and freedoms. That the courts were the trustees of these rights insofar as disputes arose concerning their interpretation was a necessary part of this new design.
[136] Because the courts are independent from the executive and legislature, litigants and citizens generally can rely on the courts to make reasoned and principled decisions according to the dictates of the constitution even though specific decisions may not be universally acclaimed. In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others' role and the role of the courts.
[137] This mutual respect is in some ways expressed in the provisions of our constitution as shown by the wording of certain of the constitutional rights themselves. ...
[138] As I view the matter, the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a "dialogue" by some. ...
[139] To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.
[140] There is also another aspect of judicial review that promotes democratic values. Although a court's invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as that may be. In this respect, we would do well to heed the words of Dickson C.J. in Oakes, supra, at p. 136:
- The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
[142] Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter
-These comments deserve further elaboration on 2 points:
(A) Built-In Deference
-The Canadian Constitution preserves a huge swath of parliamentary sovereignty.
-As Iacobucci puts it, “the parliamentary safeguards” remain, despite the court’s “reading in” approach:
“Governments are free to modify the amended legislation by passing exceptions and defences which they feel can be justified under s.1 of the Charter...Moreover, the legislators can always turn to s.33 of Charter, the override provision, which in my view is the ultimate ‘parliamentary safeguard’”.
-Sec.1 of Charter provides that the rights contained within it are guaranteed, but then “subject to reasonable limits prescribed by law as can be demonstrably justified in a few and democratic society.” Therefore, rights in the Charter are NOT absolute.
-Moreover, many of the rights in the Charter (those enriched in ss.2 and 7-15) may be overridden by the exercise of democratic will, s.33, the “notwithstanding” provision which is abundantly available to any Parliament or provincial legislature. Therefore, s.33 preserves a large measure of parliamentary supremacy, though the political price exacted for explicitly overriding constitutionally protected rights has been sufficiently high that Canadian political leaders rarely have been willing to pay it.
(B) The Dialogue Model
-Vriend invokes a sort of “dialogue” between courts and legislatures.
-This “dialogue” was described by SC justice Bertha Wilson:
“The central feature of the Charter is that all branches of government – the legislatures, the executive and the judiciary – have an equal responsibility to carry out the Charter’s mandate, and we should concentrate on their reciprocal roles. If we do this, we see that a sort of “dialogue” is going on. First, the legislatures have to examine any legislation they are contemplating passing in order to ensure that they have discharged their responsibility of Charter compliance. Then, if that legislation, once passed, is called into question, the courts must ask themselves: Did the legislature discharge its responsibility to comply with the Charter when it passed this legislation? If the answer is yes, there is no problem. If the answer is no, then the courts are obliged to strike down the legislation, though in so doing they must identify its vitiating aspects as clearly as possible so that the legislature will be in a position to correct them. The matter then goes back to the legislature for the appropriate remedial action. The courts’ assessment of the legislation’s constitutionality is not the last word; it is merely one step in the process.”
-Other observers DISMISS this concept of “dialogue”. Professor Morton argues:
That putative dialogue “is usually a monologue, with judges doing most of the talking and legislatures most of the listening. They suggest that the failure of a government to respond effectively to judicial activism is a matter of personal courage, or the lack thereof, on the part of government leaders. The fault, if there is any, rests with the individuals. By contrast, I believe that legislative paralysis is institutional in character – that, in certain circumstances, legislative non-response in the fact of judicial activism is the “normal” response. When the issues in play is cross-cutting and divides a government caucus, the political incentive structure invites government leaders to abdicate responsibility to the courts – and this may be even more true in a parliamentary as opposed to a presidential system. If I am correct, the Canadian tradition of responsive government is in for a rough ride in our brave new world of Charter democracy”
-Views such as those expressed by Professor Morton have sparked a spited defence from some academic writers, and from judges themselves.
-At the 2004 Conference on the Law and Parliament, SC Justice Beverly McLachlin said:
Remarks of the Right Honourable Beverly McLachlin PC Respecting Democratic Roles (2004) (p.490)
“In the end, when we examine what is really being said, the claim fails that judges are overstepping the proper constitutional boundaries of their role”
“Each branch must discharge its role with integrity and respect for the proper constitutional role of the other branches. To do less is to diminish our democracy and imperil our future”
__________________________________________________________________________
-It should be notes, however, that even some members of the SCC have occasionally expressed the concern that the courts may be exceeding the proper boundaries of their role in constitutional adjudication.
-Consider LaForest’s partial dissent in the following case. Recall that in this case, the court was considering whether judicial independence – the constitutional origin of which flowed in part from unwritten principles – flowed, at least in part, from legally binding but unwritten constitutional principles:
____Reference re Remuneration of Judges of the Provincial Court of Prince Edward_____
_______________________________ Island [1997]________________________________
La Forest (dissent) –
La Forest J., alone in dissent, rejected the majority's finding of an unwritten constitutional principle that protects a right to judicial salary commissions. He was very wary of the "discovery" of such new principles, especially when some protection of judges can already be found elsewhere in the text of the Constitution, namely section 11(d), which was the subject of this case. The counsel had primarily relied on section 11(d) and only briefly spoke of unwritten rules. La Forest also suggested that section 11(d) granting independence only to inferior criminal law judges, and not inferior civil law judges, was deliberate, because "Being accused of a crime is one of the most momentous encounters an individual can have with the power of the state."
La Forest went on to caution that "judicial power" is limited so that a court "does not initiate matters and has no agenda of its own." This made him worried about the majority launching into an extensive, unneeded discussion on unwritten principles. He accepted unwritten principles exist, but disputed that limits on government decisions can be found in the preamble. There was no tradition guarding judicial independence against Parliament. Parliamentary supremacy remained important in Britain even after the Act of Settlement; thus British courts cannot invalidate a law, even if the law is generally thought to be wrong. La Forest acknowledged this could be seen as a "technical quibble" since courts in Canada can invalidate laws, but he went on to point out that the Act of Settlement only covered superior judges, and not inferior judges. He also said courts should have clearer grounds for limiting legislative actions, casting previous decisions such as Switzman v. Elbling (1957), which relied on the Implied Bill of Rights, into doubt. He pointed to Attorney General for Canada and Dupond v. Montreal (1978) as a prior Supreme Court decision questioning the Implied Bill of Rights. If an implied bill of rights existed, it should be found in the creation of Parliament, in section 17 of the Constitution Act, 1867, and should allow for Parliamentary supremacy instead of limiting it.
In this case, La Forest pointed to Valente and R. v. Lippé to show section 11(d) does not guarantee a type of independence that is most favourable to judges. The conclusion in Valente that judicial compensation committees were not needed was therefore valid; section 11(d) left room for determining what methods can be used to achieve independence. In this case, judges salaries were lowered along with those of other government employees, and this did not seem to raise reasonable concerns about judicial independence. As a judicial compensation commission likely should not have a problem with this, as acknowledged by Lamer, La Forest found the requirement that the commission look into the matter to be "a triumph of form over substance."
La Forest also felt requiring such commissions was also "tantamount to enacting a new constitutional provision to extend the protection provided by s. 11(d)" by forcing the creation of "what in some respects is a virtual fourth branch of government to police the interaction between the political branches and the judiciary." Judges simply asking whether government decisions seem reasonable would be enough.
III. DIFFERENT SORTS OF JUDICIAL REVIEW OF LEGISLATIVE ACTION
-Here, we consider 3 illustrations of judicial decisions concerning different types of constitutional challenges to elements of the Canadian Human Rights Act.
-These cases allow us to explore some of the characteristic features of legal challenges that make use of unwritten constitutional principles, federalism as embodied in the Constitution Act 1867, and the rights and freedoms enumerated in the Charter.
-A detailed exploration of the many constitutional rules and principles that constrain legislative action in Canada is beyond the scope of this book. It is, however, useful to offer an illustration of the ways in which these doctrines typically operate to limit the range of action open to Parliament and the provincial legislatures.
-The following decisions illustrate the types of arguments that have been mak=de in court to impose limits on Parliament’s authority to protect Canadians from discrimination through the Canadian Human Rights Act.
A. UNWRITTEN CONSTITUTIONAL PRINCIPLES
-As we saw in Patriation Reference [1981], in Canada and the UK, many important aspects of the constitutional order are not enforceable in the courts. These constitutional conventions depend on the political branches of government for their enforcement, though, in Canada, the courts may play an important role in identifying constitutional conventions.
-As we have also noted, however, Canadian courts have been willing to a limited extend, to recognize underlying constitutional principles that can be given full legal effect (see BC v Imperial Tobacco Ltd [2005]). One example of this type of principle is the principle of ‘judicial independence’ recognized in Reference re Remuneration of Provincial Court Judegs [1997]
-In the following case, the appellant unsuccessfully sought to invoke this principle in support of its argument that the Canadian Human Rights Tribunal was insufficiently independent and impartial to provide a fair hearing of the pay equity dispute that was before it.
(Notice that because the causes of the tribunal’s alleged lack of independence or impartiality were embedded in the Canadian Human Rights Act itself, it was necessary for the appellant to use a constitutional or quasi-constitutional argument to attack the legislation rather than simply advance an argument that adjudication by the tribunal would not satisfy the common law requirements of procedural fairness).
-That observation having been made, there is considerable overlap between the common law and the constitutional principles of independence and impartiality, and the court’s ruling is ultimately based on the conclusion that the scheme established by the Act is not unfair to the appellant:
________Bell Canada v Canadian Telephone Employees Association [2003] ___________
Facts: Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. Bell alleged that the Tribunal’s independence and impartiality were compromised by two powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”, and second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.
The Tribunal rejected Bell’s position and directed that the hearings should proceed. The Federal Court, Trial Division, allowed Bell’s application for judicial review, holding that even the narrowed guideline power of the Commission unduly fettered the Tribunal, and that the Chairperson’s discretionary power to extend appointments did not leave Tribunal members with a sufficient guarantee of tenure. The Federal Court of Appeal reversed that judgment.
HELD: Appeal dismissed.
Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle.
The Tribunal should be held to a high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights. Its main function is adjudicative and it is not involved in crafting policy. However, as part of a legislative scheme for rectifying discrimination, the Tribunal serves the larger purpose of ensuring that government policy is implemented. The standard of independence applicable to it is therefore lower than that of a court. The Tribunal’s function in implementing government policy must be kept in mind when assessing whether it is impartial
The guideline power does not undermine the independence of the Tribunal. The requirement of independence pertains to the structure of tribunals and the relationship between their members and members of other branches of government. It does not have to do with independence of thought. Nor does the guideline power undermine the Tribunal’s impartiality. The guidelines are a form of law. Being fettered by law does not render a tribunal partial, because impartiality does not consist in the absence of all constraints. The guideline power is limited; and the statute and administrative law contain checks to ensure that it is not misused
The power to extend members’ appointments does not undermine the independence of Tribunal members. This question is settled by Valente. Nor does the power undermine the Tribunal’s impartiality. A reasonable person informed of the facts would not conclude that members whose appointments were extended were likely to be pressured to adopt the Chairperson’s views.
[1] This appeal raises the issue of whether the Canadian Human Rights Tribunal (the “Tribunal”) lacks independence and impartiality because of the power of the Canadian Human Rights Commission (the “Commission”) to issue guidelines binding on the Tribunal concerning “a class of cases”, and the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.
[3] In our view, Bell’s arguments are without merit. Neither of the two powers challenged by Bell compromises the procedural fairness of the Tribunal. Nor does either power contravene any applicable quasi-constitutional or constitutional principle. We would dismiss the appeal and have the complaints, finally, proceed before the Tribunal.
[31] This discussion shows that the Tribunal, though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights.
[40] Bell objects that Parliament has placed in one and the same body the function of formulating guidelines, investigating complaints, and acting as prosecutor before the Tribunal. Bell is correct in suggesting that the Commission shares these functions. However, this overlapping of different functions in a single administrative agency is not unusual, and does not on its own give rise to a reasonable apprehension of bias. As McLachlin C.J. observed in Ocean Port, supra, at para. 41, “[t]he overlapping of investigative, prosecutorial and adjudicative functions in a single agency is frequently necessary for [an administrative agency] to effectively perform its intended role”.
[50] Parliament’s choice was obviously that the Commission should exercise a delegated legislative function. Like all powers to make subordinate legislation, the Commission’s guideline power under ss. 27(2) and 27(3) is strictly constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend a “real likelihood of bias”
NOTE: the court’s reluctance to extend the constitutional principle of “judicial independence” into a broader principle of “adjudicative independence” that would embrace administrative tribunals as well as the courts.
B. THE CONSTITUTION ACT, 1867
-As already discussed, the Constitution Act 1867 establishes the basic institutional structure of the federal and provincial levels of government and assigns the respective role of the federal and provincial governments in the establishment of a system of federal and provincial courts and the appointment of judges to those courts.
-It also contains limited guarantees of minority rights in respect of the use of English and French languages in legislation and denominational schools.
-It terms of their potential to generate litigation, the most important features of this Act are the provisions of ss.91 to 95 that distribute power between the federal and provincial levels of government
-The division-of-powers litigation often involves arguments that a piece of legislation falls outside the jurisdiction of the legislature that enacted it.
-In other instances, the issue is not the validity of the particular piece of legislation, but whether a particular situation falls within the federal or provincial sphere of authority and therefore is governed by the relevant federal law, or provincial law.
-The the following case, the decision is an example of the latter type of division-of-powers case.
-If the employment activity that gave rise to the federal human rights complaint fell within the sphere of federal regulatory authority (as counsel for the Canadian Human Rights Tribunal successfully argued), then the dispute fell to be resolved under the Canadian Human Rights Act.
-But if the employment had fallen within the provincial legislative sphere (as the school council contended), then the Canadian Human Rights Act would not apply and the Canadian Human Rights Tribunal would have no jurisdiction to adjudicate the complaint.
-This would not necessarily mean that the complaints would have no legal recourse for the alleged discrimination against them, but any recourse that did exist would be under provincial human rights laws that would be administered by the relevant provincial human rights agency:
______________Qu-Appelle Indian Residential School Council v Canada______________
___________________(Canadian Human Rights Tribunal) [1988]____________________
Pg 505-509
NOTE: the importance that characterization of the relevant activity plays in Pinard’s reasoning. The resolution of federalism disputes typically turns on the way a court decides to characterize a particular law or activity. Characterization is important in Charter litigation as well; but as the Taylor case excerpted in the next section, the balancing of different interests often plays a more significant role in Charter cases than it does in federalism cases.
C. THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
-The final type of constitutional litigation
-In the Taylor case below, the SC considered an argument that the provision of s.13(1) of the Canadian Human Rights Act that made it a discriminatory practice for a person to distribute hate messages by telephone unjustifiably infringed on freedom of expression protected by the Charter.
-Two aspects of the Taylor decision deserve particular attention for present purposes:
(1) The process of defining the substantive right protected by the relevant provision of the Charter.
-a number of parties took the position that hate speech did not deserve the protection of the freedom of expression guarantees of s.2(b) of Charter. Even though the majority decision written by Chief Justice Dickson upheld the legislation, the court rejected the suggestion that the freedom of expression guaranteed itself be restricted in this way.
(2) The relationship between substantive rights and the justification of limits on those rights under s.1 of Charter.
-Here the balancing of interests plays an important role, as does the argument that the legislation in question advances the societal interest in promoting equality recognized by s.15 of Charter.
_________________Canada (Human Rights Commission) v Taylor [1990] _____________
Facts: Mr. T continued his telephonic message of anti-Semitism in defiance of the court order, he was committed to prison for contempt. He appealed on constitutional grounds to SCC
SCC Held: the ban on telephone messages violated s.2(b). However, held that the ban was justified under s.1, so Mr. T had to stay in prison. The appeal should be dismissed. Section 13(1) of the Canadian Human Rights Act is constitutional. s. 13(1), which prohibits the communication of hate messages by telephone, does NOT violate the Charter.
Dickson C.J. (majority) –
finds that s. 13(1) violates the s. 2(b) guarantee of freedom of expression. The hate messages communicated by Taylor and the Western Guard Party constitute "expression" and s. 2(b) protects expression no matter what the content, as long as it is not communicated in violent forms.
However, the majority finds s. 13(1) is a justifiable limit on freedom of expression within the meaning of s. 1 of the Charter. Hate propaganda undermines the dignity and self-worth of minority racial and religious groups and erodes the tolerance and open-mindedness which are essential in a multicultural society. The purpose of s. 13(1) is to promote equality and to prevent the harm which hate propaganda causes to targeted groups. This is a pressing and substantial concern. It is of heightened importance because it is supported by other sections of the Charter, namely ss. 15 and 27, and by international human rights instruments to which Canada is signatory.
Having determined that the objective of s. 13(1) is of sufficient importance to warrant overriding a fundamental freedom, the majority considered whether the means are proportionate. To meet the Oakes test of proportionality, the state must show that 1) there is a rational connection between the impugned measure and the objective; 2) the measure impairs the Charter right as little as possible; and 3) the effects of the measure are not so severe as to represent an unacceptable abridgment of the right.
The majority finds that hate propaganda produces effects that are deleterious to the objective of equality of opportunity. Thus, there is clearly a rational connection between the restriction on communicating hate messages and the objective of promoting equality for racial and religious minorities. The majority rejects the argument that there is no rational connection because s. 13(1) does not, in fact, reduce hate propaganda. In combating discrimination, legislative efforts to suppress hate propaganda are not the only means available but they are considered an important weapon against intolerance by the international community.
Considering whether s. 13(1) impairs the right to freedom of expression as little as possible, the majority rejects a number of arguments advanced by the appellants and the intervener, the Canadian Civil Liberties Association. The Canadian Civil Liberties Association argued that the right is not impaired as little as possible because the words "hatred" and "contempt" are inherently vague and do not precisely define the scope of the discriminatory practices. Because of this, expression which does not contribute to discrimination may be caught. However, the majority finds that these terms are sufficiently precise, when read in light of the objects of the Act, to prevent unacceptable chilling of expressive activity.
The majority also rejects the argument that the absence of a requirement to show that there was an intent to expose a group to hatred makes it a serious and unnecessary impairment of the right to freedom of expression. The Canadian Civil Liberties Association argued that individuals who are oblivious of the consequences of their communications, or who intend to reduce discrimination, may be caught by s. 13(1) because it is only effects which need be considered. In answer, the majority rules that the important objective of s. 13(1) can only be achieved by ignoring intent and therefore the minimal impairment requirement of the Oakes test is satisfied.
In addition, the majority rejects the argument that s. 13(1) does not impair the right as little as possible because it interferes with telephone communication which is generally considered private. The majority of the Court finds that telephonic communication is a particularly effective means of conveying hate messages since the message is subject to no counter-argument in that particular communications context. Also, the Court finds that it is repeated communication of hate messages which is prohibited.
The majority concludes that the effect of s. 13(1) on the right to freedom of expression is not needlessly severe. The chill placed upon expression by a human rights statute is not the same as that caused by criminal law. A criminal conviction carries a degree of stigma and punishment, whereas the emphasis of human rights laws is on protection of the victim.
The year of imprisonment imposed on John Ross Taylor was not the result of the order of the Tribunal, but the result of the Federal Court's ruling that Taylor was in contempt of court when he ignored the order and continued to communicate hate messages. A cease and desist order which must necessarily precede a contempt order brings to the attention of the person the fact that his messages are likely to have a harmful effect. Continuing such messages, after such a ruling, cannot be said to occur without intent regarding the effect of the message.
The majority concludes that s. 13(1) is a reasonable limit on the right to freedom of expression within the meaning of s. 1.
The majority also rejects the appellants' argument that the cease and desist order violated the right to freedom of expression because it was too vague to allow the appellants to determine what expressive activity was prohibited. The order was a part of a lengthy decision which allowed for no doubt as to the subject matter which Taylor and the Western Guard Party were enjoined from communicating.
Finally, the appellants argue that the Tribunal was biased because it was appointed by the Canadian Human Rights Commission which investigated the complaints. This position relied on the 1985 decision of the Federal Court of Appeal in MacBain v. Canada (Human Rights Comm.) which decided that ss. 39(1) and 39(5) of the Canadian Human Rights Act were of no effect to the extent that they allowed the Commission to appoint the tribunal before which it appeared as the prosecuting party. In the present case, the issue of bias was not raised by the appellants until 1987, about eight years after the Tribunal's decision was released. The majority agreed with the reasoning of the Federal Court of Appeal on this question. The Federal Court of Appeal finds that since the appellants had made no effort to raise allegations of a reasonable apprehension of bias over a period of years, their inaction constituted a waiver.
II. JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
-Here, we consider JR of administrative action using the common law. Here, we focus on the institutional relationships between courts and different administrative bodies, once again using examples drawn from federal human rights law.
-As Canadian courts have become more sophisticated in their approach of JR, they have become willing to take into account a number of other factors in determining the nature of their institutional relationship with administrative decision makers.
-These factors have become part of a “pragmatic and functional” standard of review analysis that has become the first step a court must take when reviewing an administrative decision.
(TODAY....SEE DUNSMUIR......)
-The court’s chief function in administrative JR is to police the executive and ensure that it does not act without lawful authority from the legislature (or the royal prerogative).
-The court’s approach to administrative JR has involved “a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power” (National Corn Growers [1990]).
-Specialized administrative bodies – and particularly the many specialized tribunals established by statute – may know their business better than do the generalist courts.
A. STANDARDS OF REVIEW
-The SCC’s decision in Dr. Q builds upon a series of cases that have established the modern approach to common law JR of administrative decisions.
-Some observers (C.U.P.E [2003] and Voice Construction Ltd [2004]) have criticized the standard of review approach set out in Dr. Q on the basis that it is overly complicated, too difficult to predict, and ill suited to many of the broad-ranging administrative decisions to which it is applied.
-It is also sometimes suggested that the distinction between the “reasonableness simpliciter” and “patently unreasonable” standards of review is unclear, and we would be better served by settling on 2 standards of review (“CORRECTNESS” and “REAOSNABLENESS”)
-TODAY............SEE DUNSMUIR.........where there now IS only 2 SofR
_________Dr Q v College of Physicians and Surgeons of British Columbia [2003]_______
Facts: Dr. Q was brought before the Discipline Committee of the British Columbia College of Physicians and Surgeons for having sexual relations with a patient. The patient had originally sought help in 1994 for depression. By 1995 the two began sexual relations. Dr. Q denied any misconduct. The Committee found that Dr. Q was guilty of infamous misconduct. The Committee based its decision on the weight of the patient's testimony, ignoring Dr. Q's testimony.
The Committee applied a standard of "clear and cogent evidence". Dr. Q applied for judicial review of the decision arguing that the wrong standard was applied.
HELD: Appeal allowed
McLachlin (majority) –
allowed the appeal and reinstated the order. She found that the standard of "clear and cogent evidence" was the appropriate standard.
On the issue of standard of review, McLachlin reiterated the three degrees of deference available, correctness, reasonableness simpliciter, and patent unreasonableness. She considered what degree of deference was required in these circumstances based on the four factors of the "pragmatic and functional approach".
On the whole, the Committee decisions were to be reviewed on a standard of "reasonableness".
Under the reasonableness standard, the reviewing judge's view of the evidence is beside the point.
Instead, the court should only ask whether there is some basis in evidence to support the conclusion.
Dunsmuir v New Brunswick (2008)
Facts: Appeal by a former employee with respect to his dismissal from his employment at the Department of Justice of the respondent Province of New Brunswick. During the course of his employment, the appellant was reprimanded on three separate occasions. He also received letters that included warnings that his failure to improve his work performance would result in further disciplinary action up to and including dismissal. The Regional Director and the Assistant Deputy Minister then came to the conclusion that the appellant was not right for the job, and a termination notice was sent to the appellant. Cause for termination was not alleged, and he was given four months' pay in lieu of notice. When the appellant's grievance was denied, he then referred the grievance to adjudication. During a preliminary ruling, the adjudicator found that he was authorized to assess the reasons underlying the respondent's decision to terminate pursuant to the Public Service Labour Relations Act. He then heard and decided the merits of the grievance, found that the appellant was dismissed without procedural fairness, and declared the termination void ab initio and ordered the appellant reinstated. On judicial review, the reviewing judge concluded that the correctness standard of review applied, that the adjudicator had exceeded his jurisdiction, and that his authority was limited to determining whether the notice period was reasonable. The reviewing judge quashed the reinstatement order. In dismissing the former employee's appeal, the Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator's authority under the Act was reasonableness simpliciter. On the issue of procedural fairness, it found that the appellant exercised his right to grieve, and thus a finding that the duty of fairness had been breached was without legal foundation.
HELD: Appeal dismissed. There were two standards of review: correctness and reasonableness. With respect to the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, a review of the cases revealed that any actual difference between them in terms of their operation was illusory. In this case, the standard of reasonableness applied, such that the decision maker should be given deference. Factors taken into consideration in favouring the reasonableness standard included: the Act contained a full privative clause, there existed a regime in which the decision maker had special expertise, and the nature of the legal question at issue was not one of central importance to the legal system or outside the specialized expertise of the adjudicator. However, while deference was to be given to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, it did not reach the standard of reasonableness. The adjudicator's reasoning process relied on a construction of the Act that fell outside the range of admissible statutory interpretations. The employment relationship between the parties in this case was governed by private law. Where a public employee was employed under a contract of employment, regardless of the employee's status as a public office holder, the applicable law governing dismissal was the law of contract, not general principles arising out of public law. A reasonable interpretation of the Act could not remove the respondent's right under contract law to discharge the appellant with reasonable notice or pay in lieu of notice. The decision to dismiss the appellant was properly within the respondent's powers and was taken pursuant to a contract of employment. In these circumstances, it was unnecessary to consider any public law duty of procedural fairness.
PRINCIPLE: the two variants of reasonableness review should be collapsed into a single form of “reasonableness” review. The result is a system of judicial review comprising two standards: correctness and reasonableness.
PRINCIPLE: “pragmatic and functional approach” is now referred to as the “standard of review analysis”.
(A) Reasonableness standard:
courts will give due consideration to the determinations of decision makers. Deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers.
(B) Correctness standard:
a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. Thus, the court must ask whether the tribunal’s decision was correct.
Method for selecting the appropriate standard of review (a.k.a. the “pragmatic and functional approach”:
(A) Reasonableness standard:
(1) The presence or absence of a privative/preclusive clause
o Because a privative clause is evidence of Parliament or a legislature’s intent of deference. However, the presence of a privative clause is not determinative.
(2) The nature of the question at issue;
o If the question is one of fact, discretion or policy, deference will usually apply automatically.
o If the questions are of mixed law and fact.
(3) The purpose of the tribunal as determined by interpretation of enabling legislation;
o Where a tribunal is interpreting its own statute(s) closely connected to its function, with which it will have particular familiarity reasonableness will attract.
(4) Expertise (in the application of a general common or civil law rule) will attract deference.
o Adjudication in labour law.
(B) Correctness standard:
· A question of law (that is of central importance to the legal system and outside the specialized are of expertise of the administrative decision maker).
· A question of jurisdiction.
o Constitutional questions regarding the division of powers (National Energy Board).
o Courts must substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v C.U.P.E.).
Because the phrase “pragmatic and functional approach” may have misguided courts in the past, we prefer to refer simply to the “standard of review analysis” in the future.
-Application of the standard of review to Dunsmuir:
(1) Privative clause existed (“every order, award, direction, decision ... of an adjudicator is final and shall not be questioned or reviewed in any court”.
(2) The nature of the question at issue is not one that is of central importance to the legal system nor outside the specialized expertise of the adjudicator indicating a reasonableness standard.
(3) Provision for timely and binding settlements of disputes implies a reasonableness standard.
(4) The nature of the regime favours the standard of reasonableness: labour arbitrators.
SCC Held: the appropriate standard is reasonableness.
Was the adjudicator’s interpretation unreasonable?:
-SCC Held: the adjudicator’s interpretation was unreasonable.
-The reasoning process of the adjudicator was deeply flawed.
The approach to the dismissal of public employees:
-The starting point should be to determine the nature of the employment relationship with the public authority.
-Following Wells, it is assumed that most public employment relationships are contractual.
-A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness.
-Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies (overruling Knight on this).
-HOWEVER, there may be occasions where a public law duty of fairness will still apply:
(1) Where a public employee is not protected by a contract of employment (judges, minister and others who “fulfill constitutionally defined state roles (Wells) or the terms of appointment expressly provide for summary dismissal or are silent).
(2) The dismissal of a teacher could only take place if the teacher was given three week’s notice of the motion to dismiss (MallochUK).
THEREFORE:
-Facts: D was employed by the Department of Justice for the Province of New Brunswick. He held a position under the Civil Service Act and was an office holder “at pleasure”. His probationary period was extended twice and the employer reprimanded him on three separate occasions. Eventually, his employer sent him a formal letter of termination, cause was explicitly not alleged, and given four months’ pay in lieu of notice.
-Dunsmuir’s argument: no reasons given for dismissal, no opportunity to respond to the concerns, termination was without notice, and the length of the notice period was inadequate.
-SCC Held: Since the appellant was a contractual employee, it was not necessary to consider any public law duty of procedural fairness. Contract law applied. Thus, the adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down.
B. THE STANDARD OF REVIEW IN OPERATION
-The next 2 decisions apply the “standard of review” analysis to determine the appropriate standard of review of 2 decisions, one made by the Canadian Human Rights Commission (MacLean) and one make by the Canadian Human Rights Tribunal (Quigley)
-In both of these instances, the agency rejected the human rights complaint that was before it.
-In both of these cases, the court dismissed the application for JR.
NOTE: the difference between dismissal of complaints at the commission stages and at the tribunal stage affects the standard of review analysis. The commission is responsible for investigating and attempting to resolve complaint but it does NOT adjudicate complaints or have the authority to make a final determination that the complaint is valid. If a complaint is forwarded to the tribunal by the commission, the tribunal normally DOES hold a formal hearing to adjudicate the complaint.
_______________MacLean v Canada (Human Rights Commission) [2003] ____________
[1] This is an application for JR in respect of the decision of the Canadian Human Rights Commission, wherein the applicant’s complaint against Marine Atlantic Inc. And Canadian Auto Workers (CAW) was dismissed.
[47] The Commission’s reasons in this case are brief, but do tell the applicant why the Commission decided to dismiss his complaint. The Commission clearly stated it was not discriminatory to provide different categories of benefits for those who are more likely to be affected than others by the closure of the Marine Atlantic ferry service on the Borden-Cape Tormentine run. I am of the opinion that the reasons provided by the Commission were sufficient.
NOTE: the court addresses the arguments that the commission behaved in a procedurally unfair manner WITHOUT doing a separate “standard of review” analysis in respect of these arguments.
(the reason that no standard of review is necessary in these procedural fairness analysis situations is that the common law rules governing fair procedure already built in a degree of flexibility that takes into account the institutional setting in which the decision was taken)
_________________Quigley v Ocean Construction Supplies Ltd. [2004] _______________
Pg 538-541
What remedies are available where JR of administrative action is successful?
-To some extent, Parliament and provincial legislatures are entitled to choose what opportunities are available to persons affected by administrative decisions to seek relief from the courts
-Where rights of appeal to the courts are not made available, it is usually open to those affected by the administrative decisions to seek relief using a series of JR remedies, such as “certiorari” ,”prohibition,” “mandamus”, and “hebeas corpus”.
-It is important to administrative law theory that the courts generally NOT assume the power to make the decisions that have been granted by legislators to executive government.
-It is NOT, after all, the role of the courts to supplant the executive. Instead, the courts merely determine whether the executive has made a legal error in the exercise of its powers.
-THUS, WHERE A SUPERIOR COURT DECIDES TO INTERVENE IN RESPONSE TO AN APPLICATION FOR JR, ITS SUPERVISORY JURISDICTION IS GENERALLY EXERCISED IN A MANNER THAT HAS THE EFFECT OF NULLIFYING ACTS TAKEN PURSUANT TO DEFECTIVE DECISION MAKING, AND REQUIRING THE DELEGATES IN QUESTION TO START OVER.
5. RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE: SELECTED TOPICS:
Aboriginal Peoples and Treaty Rights s.91(2), s.25, s.35
FEDERAL LEGISLATIVE POWER
(a) Section 91(24)
(b) Indians
o Thus, two heads of power:
(1) a power over “Indians”, and
o This power may be exercised in respect of Indians only, whether or not they reside on, or have any connection with lands reserved for the Indians.
(2) a power over “lands reserved for the Indians”.
o This power may be exercised in respect of Indians and non-Indians so long as the law is related to lands reserved for the Indians.
o Thus is part of the Charter, but it does not create any new rights. It is an interpretative provision.
o This makes clear that the equality guarantee in s.15 does NOT invalidate aboriginal or treaty rights.
o The definition of “aboriginal peoples of Canada” includes:
- the Indian
- Inuit and
-Metis peoples of Canada
s.88, Indian Act – makes clear that provincial “laws of general application” apply to “Indians”.
o Status Indians = live on Indian reserves, have Indian Act privileges and within s.91(24)
o Non-status Indians = live on Indian reserves, NOT part of Indian Act. Within s.91(24)
o Metis People = can live on Indian reserves intermarriage between French-Canadian men and Indian women. May be within s.91(24)
o Inuit or Eskimo People = NOT covered by Indian Act. Do NOT live on Indian reserves. Can be included in s.91(24).
Therefore, Non-Status Indians, Metis, Inuit/Eskimo people are NOT govern med by the Indian Act but by s.91(24).
Federal Indian Act – defines the term “Indian” for the purposes of that Act, and establishes a register to record the names of qualified persons (about 700,00 status Indians in Canada). Persons within the statutory definition of the Act are known as “status Indians”.
o Non-status Indians, which number about 200,000, are “Indians” within the meaning of s.91(24), although they are not governed by the Indian Act.
(c) Lands Reserved for Indians
o S.91(24) = federal Parliament legislative power over “land reserved for the Indians”
(d) Canadian Bill of Rights
s.1(b), Bill of Rights – guarantee of “equality before the law”, and specifically forbids “discrimination by reason of race”.
o The federal Indian Act appears on its face to offend the guarantee of equality in the Bill of Rights.
R v Drybones (1969) – SCC held the use of the racial classification “Indian” in s.94 of the Indian Act, which made it an offence for an Indian to be intoxicated off a reserve, violated the equality guarantee in the Bill of Rights.
o This decision case doubt on all of the provisions of the Indian Act, and on the whole principle of a special regime of law for Indians.
(e) Charter of Rights
Corbiere – SCC struck down the provision in the Indian Act that made residence on the reserve a requirement for voting in band elections because the distinction between Indians who lived on the reserve (and could vote) and Indian who did not was a breach of s.15.
(f) Treaties
o Treaties within OTHER counties have no effect on Canadian law unless they are implemented by Federal legislation
o Before 1982, treaties entered into within Indian tribes were prohibited by the Federal law from performing their treaty outside the season required by Federal law
o Today, s.35 gives constitutional protection for treaty rights and international treaties
PROVINCIAL LEGISLATIVE POWER
(a) Application of provincial laws
o The general rule: is that provincial laws apply to Indians and lands reserved for the Indians, so long as the law is in relation to a matter coming within a provincial head of power.
R v Hill (1907) – Ontario CA held that a provincial law confining the practice of medicine to qualified physicians applied to Indians. The offence did not take place on a reserve, but would have been the same if it had.
R v Francis (1988) – SCC held that provincial labour law applied to a shoe-manufacturing business located on a reserve which was owned by Indians, employed Indians and which had been funded by the Department of Indian Affairs.
5 exceptions to general rule that provincial laws apply to Indians and lands reserved for Indians:
(i) Singling out
o If provincial law singled out Indians or Indian reserves for special treatment, then the law is invalid
(ii) Indianess
o A provincial law that affects “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians” will be inapplicable, even though the law is one of general application that is otherwise within provincial competence.
Paul v BC (2003)
o Issue: The defendant, an Indian, claimed that he was exercising an aboriginal right when he cut down trees in a provincial forest in apparent violation of the Code. He argued that the province could not empower an administrative tribunal to make a ruling about the existence or applicability of aboriginal rights.
o SCC Held: court rejected this argument on the basis that adjudication was distinct from legislation and since the function conferred on the Forest Appeals Commission included the power to decide questions of law, the Commission’s decision was upheld.
(iii) Paramountcy
o If a provincial law is inconsistent with a provision of the Indian Act (or any other federal law), the provincial law is rendered inoperative by the doctrine of federal paramountcy.
(iv) Natural Resources Agreements
o Provincial law CANNOT deprive Indians of this right to game and fish for food (which is protected by the 3 prairie provinces)
(v) s.35
o Aboriginal and treaty rights, since 1982, have been protected by s.35.
o Therefore, constitutional status given to aboriginal and treaty rights
o Therefore, protected from impairment by provincial law
SECTION 88 OF INDIAN ACT
(a) Text of s.88
o S.88 Indian Act = provincial laws of general application to “Indians”. This is in operation as a federal incorporation of provincial laws to make provisional laws applicable as part of the federal law.
(b) Laws of General Application
Dick v The Queen [1985]
o PRINCIPLE: Provincial laws NOT affecting ‘Indianness’, but which apply to Indians of their own force, are NOT within s.88 I.A
o BEETZ à s.88 I.A applies to provincial laws that affect ‘Indianness’ by impairing the status of capacity of Indians. Therefore, provincial laws that can be applied to Indians, without touching their ‘Indianness’, will apply to Indians of their own force.
o THEREFRE PROVINCIAL LAWS OF GENERAL APPLICATION CAB INFRINGE ON ABORIGINAL RIGHTS. BUT S.88 DOES NOT ALLOW PROVINCIAL LAWS OF GENERAL APPLICATION TO EXTINGUISH ABORIGINAL RIGHTS!
(c) Paramountcy Exception
o Any conflict between statute and a provisional law of general application is to be resolved in favour of federal statute.
o BUT THE EXCEPTION IS: Exception to s.88 = the “paramountcy doctrine” continues to apply to provincial laws of general application despite the adoption of federal statute. Therefore, applies only where there is this contradiction.
o Only provincial laws that affect “Indianness” will be subject to this paramount exception
i.e. provincial laws that do NOT affect ‘indianness’, apply to Indians in their own force (not through s.88), and they are subject to the rule of paramount (not the expanded rule of s.88)
(d) Treaty Exception
o Any conflict between a treaty made within Indians and a provincial law of general application, MUST go in favour of the treaty provision
NATURAL RESOURCES AGREEMENTS
o Alberta, Saskatchewan and Manitoba, limits provincial competence by making laws applicable to Indians within the “Natural Resources Agreement”
ABORIGINAL RIGHTS
(a) Recognition of aboriginal rights
o s.35 = gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
*Guerin v The Queen [1984]
o PRINCIPLE: aboriginal title survived European settlement and assumption of souverighnty by the Crown. Aboriginal title to land gave rise to a fiduciary duty by the Crown to deal within the land for the benefit of Indians.
o SCC HELD: aboriginal title of the Musqueaam Indian Band to land in B.C was recognized. The fiduciary duty had been broken, so the Indians received damages
R v Sparrow [1990]
o PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
o HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o THEREFORE, BOTH CASES RECOGNIZE A FIDUCIARY OR A TRUST-LIKE OBLIGATIONS BY THE CROWN! AND BOTH CASES CONFIRM ABORIGINAL RIGHTS EXIST AT COMMON LAW
(b) Definition of aboriginal rights
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
R v Van der Peet (1996)
o PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
o Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
o SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
Van der Peet applied in:
R v Gladstone (1996) – SCC held the claimed aboriginal right, which was to sell herring spawn on kelp, was established. Evidence showed that, before contact, the Heiltsuk people habitually sold large quantities of herring to other Indian tribes. The purpose of this activity was not to dispose of surplus food (as in Van der Peet); now was it incidental to social and ceremonial traditions (as in Smokehouse). The trade in herring spawn was “a central and defining feature of Heilstuk society”.
Mitchell v Minister of National Revenue (2001) – SCC rejected the claim by the Mohawk people of Akwesasne to an aboriginal right to bring goods purchased in the U.S. across the St. Lawrence River (the international border) into Canada without paying customs duty on the goods. Evidence was no sufficient, at most, the occasions of trade were few, and participation in northernly trade was “not a practice integral to the distinctive culture of the Mohawk people”.
R v Sappier (2006) – harvesting of wood for domestic uses was integral to the distinctive culture.
By definition, Van der Peet, could not apply to the Metis since their society was formed after European contact (with Europeans). However, this has been accommodated for:
R v Powley (2003) – for Metis claimants of aboriginal rights, the focus on European contact had to be moved forward, not to the time of European sovereignty, but to ‘the time of effective European control”. Apart from this shift in time, the same Van der Peet definition applied.
(c) Aboriginal self-government
R v Pamajewon (1996)
o PRINCIPLE: aboriginal right of self-government extends only to activities that took place before European contact, and then only to those activities that were an integral part of the aboriginal society.
o SCC held: that gambling was not an integral part of the distinctive cultures of the First Nations, and therefore, they had no aboriginal right to regulate gambling. The defendants were properly convicted of breaching the gaming provisions of the Criminal Code.
NOTE:
- The Charlottown Accord, if it was ratified, would have protected and regulated the aboriginal right of self-government under s.35.1.
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
1. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
2. A.T confers exclusive right to land and occupation of land
3. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
4. A.T can only be held communally by aboriginals as members of aboriginal nation
5. At is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
(e) Extinguishment of Aboriginal Rights
o Aboriginal rights, including title, can be distinguished in 2 ways:
1) By surrender: voluntarily surrender their aboriginal rights to the crown
2) By constitutional amendment: it would be in breach of the Crown’s fiduciary duty to aboriginal people to proceed with an amendment affecting aboriginal people and rights without their active participation)
TREATY RIGHTS
(a) Introduction
(b) History
(c) Definition of treaty
o It is an agreement between the Crown and an aboriginal nation with the following characteristics:
(1) Parties
(2) Agency
(3) Intention to create legal relations
(4) Consideration
(5) Formality
Simon v The Queen (1985)
o Issue: whether the legal recognition should be given to a “peace and friendship” treaty signed in 1752 by the governor of Nova Scotia and the Chief of the Micmac Indians. The document purported to guarantee to the Indians “free liberty of hunting and fishing as usual” in the treaty area. Thus, does the “treaty” fall within the meaning f s.88 of Indian Act?
o SCC Held: this was a valid treaty, which, by virtue of s.88 of the Indian Act, exempted the Micmac defendant from the game laws of Nova Scotia.
o A treaty MUST have an intention to creatE obligations that are mutually binding. Therefore, the surrender of aboriginal rights is NOT a requirement of a valid treaty. THERE MUST BE CONSIDERATION MOVING FROM INDIAN SIDE AND THE CROWN SHOULD BE HELD TO ITS SIDE OF THE BARGAIN
Nowegijick v The Queen (1983) – It is a well established principle of interpretation that “treaties and statutes relating to Indians should be liberally construed and doubtful expression resolved in favour of the Indians”.
o Because the Indians were not in a position to fully understand the Treaty, unequal bargaining rights between the Crown and the aboriginal people.
(d) Interpretation of Treating Rights
o Between the Crown and the aboriginal nation, they should be liberally construed and doubtful expressions resolved in favour of Indians
o Marshall 1 à Marshall 2 à Marshall 3
Marshall 3 (2005) – Logging was not a traditional Mi’Kmaq activity in 1760. And, while treaty rights are not frozen in time, modern logging activity could not be characterized as the natural evolution of the minor trade in wood products. The defendants had no treaty right to cut down trees for commercial purposes without a licence.
HELD: while modern eel fishing was a logical evolution of trading activity, logging was not a traditional activity for Mi’Kmaq activity. Therefore, NO TREATY RIGHTS to cut down trees for commercial purposes without a licence
SEE Morris
o Progressive interpretation of an Indian treaty:
R v Morris (2006) – SCC held “the use of guns, spotlights and motor vehicles is the current state of the evolution of the Tsartlip’s historic hunting practices”: these modern ways of hunting “do not change the essential character of the practice, namely, night hunting with illumination”. The practice was protected by the treaty, and the two accused were free.
(e) Extinguishment of rights
o Treaty rights and aboriginal rights may be extinguished in two ways:
(1) by voluntary surrender to the Crown, and
(2) by constitutional amendment.
o Evidence of longstanding non-exercise of treaty rights does not cause an extinguishment.
THE NEED FOR CONSTITUIONAL PROTECTION
o
SECTION 35
(a) Text of s.35
s.35 – gives constitutional protection to “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”.
(b) Outside Charter of Rights
o The definition of “aboriginal peoples of Canada” includes “the Indian, Inuit and Metis peoples of Canada”.
o s.35 is located outside the Charter (which occupies ss. 1 to 34) and the rights referred to in s.35 are not qualified by s.1, nor are they subject to legislative override under s.33, nor are the rights effective only against governmental action, as stipulated in s.32.
o On the other hand, the disadvantage is that the rights are not enforceable under s.24, a provision that permits enforcement only of the Charter.
(c) “Aboriginal peoples of Canada”
o Indian, Inuit, and Metis people, and Non-Status Indians (under s.35(2))
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(1) Self-identification of Metis community
(2) Ancestral connection must be traced
(3) Community acceptance and member of modern Metis community
(d) “Aboriginal and Treaty Rights”
(e) “Existing”
o S35 = protects existing aboriginal rights and treaty rights does not exclude tights that coame into axistance after 1982 because such rights could only be treaty rights
o s.35(3) – For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreement or may be so acquired.
o The last phrase, “or may be so acquired”, makes clear that treaty rights are acquired after 1982 are protected by s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o The effect of the word “existing” in s.35 was to exclude from constitutional protection those rights that had been validly extinguished before 1982.
o The court attributed an expansive or liberalizing effect to the word “existing”: the word “existing” meant that the guaranteed rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. For example, hunt and fish by bow and arrow where not limited to these means and a right to trade in the form of barter in modern times extend to the use of currency, credit, etc.
(a) “Recognized and Affirmed”
Sparrow:
o The rights protected by s.35 are not absolute, they are subject to regulation by federal laws, provided the laws met a standard of justification like that of s.1. A justified impairment would have to pursue an objective that was “compelling and substantial”.
o For example, the conservation and management of a limited resource would be a justified objective, but “the public interest” would be too vague to serve as a justification.
o In the Sparrow case itself, the court did not feel able to decide whether the net-length restriction would satisfy the standard of justification.
o SO, IF A LAW HAD THE EFFECT OF IMPAIRING AN EXISTING ABORIGINAL RIGHT, IT WOULD BE SUBJECT TO JUDICIAL REVIEW TO DETERMINE WHETHER IT WAS A JUSTIFIED IMPAIRMENT
o Justified Impairment = must pursue an objective that is “compelling and substantial”
i.e. if a sufficient objective is found, then the law must employ a means that were consistent with “special trust relationship” between government and aboriginal people
R v Gladstone (1996)
o Issue: whether restrictions on the sale of herring spawn on kelp could be justified in their application to aboriginal people who had an aboriginal right to sell the spawn.
o SCC Held: applied Sparrow test that holders of aboriginal rights would have to be given priority in access to the resources such as fishery.
o BUT the court held that this was not acceptable for a right without internal limitations. The Sparrow requirement of justification did NOT require aboriginal priority, but could be satisfied by “objectives such as the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal groups”
o The court conclude that there was insufficient evidence to determine whether the regulatory scheme for the sale of herring spawn was justified, and remitted the issue to a new trial.
NOTE:
è This ruling on justification seems to be a departure from the Sparrow’s instance on “compelling and substantial” objectives.
è This runs the risk that later courts will not impose the strict standards of justification on regulatory schemes that derogate from those aboriginal or treaty rights that are not limited by their own terms.
(b) Application to Treaty Rights
R v Badger [1996]
o Sparrow only concerned aboriginal rights. But because s.35 applied to treaty rights and aboriginal rights, the doctrine of Sparrow therefore applies to BOTH treaty rights AND aboriginal rights
o HOGG à the standard of justification for a law impairing a treaty right should be very high indeed!
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
“Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DO NOT NEED TO SATESFY THE SPARROW TEST
(c) Application to Extinguishment
o Sparrow = s.35 to protect aboriginal and treaty rights from extinguishment by federal legislation
o Therefore, the Sparrow Test of Justification, if satisfied, would SAVE a federal law that purported to REGULATE an Aboriginal or treaty right....but not a federal law that purported to extinguish the right
(d) Application to Provincial Laws
o What effect does s.35 have on provincial laws?
R v Badger [1996]
“Provincial law was capable of infringing a treaty right, provided that the law could satisfy the Sparrow Test of Justification”
o HOWEVER, unsatisfactory because of s.88, where a provincial law could impair an aboriginal right
(e) Duty to consult aboriginal people
o S.35 = gives constitutional protection to special relationships between the Crown and the Aboriginal People
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
o Obligations are ONLY on the Crow
o Duty to consult extends to the Crown in the right of the federal government of Canada
o The Crown has the responsibility for eh aboriginal rights and affairs to match the federal legislation of s.91(24).
o In Haida, it was the PROVINCIAL Crown land that was the subject of the aboriginal claim. So the court held that PUBLIC LANDS OF THE PROVINCE WERE SUBJECT TO ABORIGINAL INTERESTS. The duty to consult extended to the Crown’s right of the province
o s.35(1) – declares that the federal and provincial governments “are committed to the principle” that, before any amendment is made to s.91(24) or to s.35 or to s.25, a constitutional conference will be convened to which representative of the aboriginal peoples will be invited to participate.
o Through s.35(1), the aboriginal peoples have gained entry to the constitutional amendment process.
SECTION 25
o s.25 – part of the Charter, but it does not create any new rights. It is an interpretative provision, included to make clear that the Charter is not to be construed as derogating from “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”
o In the absence of s.25, it would perhaps have been arguable that rights attaching to groups defined by race were invalidated by s.15 (equality).
Corbiere v Canada (1999) – SCC struck down the residence requirement (in order to vote, an Indian must live on the reserve) under s.15 on the basis that it discriminated against those Indian band members who lived off the band’s reserve.
o s.35 affords Constitutional protection from legislative impairment for the rights it covers. Therefore, it leaves s.25 with little work to do.
o But as Corbiere suggested: “The class of rights saved by s.25 is probably wider than the class of rights guarantee by s.35 because s.25 is “other” rights of freedoms (protected from the challenge of s.15)...
S. 25 is NOT qualified by the word “existing”...”
SECTTION 35.1 CONSTITUION
o Aboriginal people fear that their constitutional protection is still vulnerable, even within s.91(24), s.25, and s.35.
o Therefore, s.35.1 was added
o S.35.1 = the federal and provincial government are committed to do the principle that, before an amendment is made to s.91(24), or s.35 or s.25, a constitutional conference will take place with representatives of the aboriginal people
o REMEMBER:
è s.15 only has a limited role to play with respect to aboriginal peoples, since s.35 “special status” applies for them, which is recognized by s.25 of Charter.
è In addition, the federal Parliament, under s.91(24) gives effect to aboriginal or treaty rights, are NOT affected by s.15 of Charter.
ADDITIONAL CASES FOR SECTION 5:
Aboriginal Rights
__________________________________R v Sparrow [1990]_______________________________
PRINCIPLE: test of justification. S.35 provided constitutional protection for the aboriginal rights.
“All dealings with aboriginal people, the government has the responsibility to act in a fiduciary capacity”
HELD: Aboriginal rights, including fiduciary duty, are constitutionally protected under s.35.
o What is the status of aboriginal or treat rights that had been extinguished or regulated before 1982?
R v Sparrow (1990)
o PRINCIPLE: the word “existing” in s.35 = “unextinguished”. A right that had been validly extinguished before 1982 was not protected by s.35 AND the Act extinguishing the right must be clear and plain of its intention to extinguish the aboriginal right.
o SCC Held: the court refused to imply an extinguishment from the admittedly extensive regulatory control of the Fisheries Act. While an aboriginal right could be extinguished by federal statute before 1982, a federal statute would have that effect only if the intention to extinguish was “clear and plain”. The Fisheries Act and its regulations (although they prohibited fishing, except under a statutory licence) did not demonstrate “a clear and plain intention to extinguish the Indian aboriginal right to fish. Therefore, the right was an “existing” right within the meaning of s.35.
o Before Van der Peet the SCC made no attempt to define the characteristics of aboriginal rights:
___________________________________R v Van der Peet (1996)__________________________
PRINCIPLE: There is a Legal test to identify an “existing aboriginal right” within the meaning of s.35:
“in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right”...
àIn order for a practice to be “integral” = the practice must be “of central significance” to the aboriginal society: it must be a “defining” characteristic of the society.
àThe practice must have developed before “contact” = “before the arrival of Europeans in NA...the bone hook would be replaced by the steel hook, the bow and arrow by the gun, and so on..contemporary practices that developed “solely as a response to European influences” do not qualify.
Facts: Aboriginal defendant had been convicted of selling fish which was prohibited under the federal Fisheries Act that restricted fishing for food.
SCC Held: The exchange of fish did occur in the society of the Sto:lo people before contact with Europeans, but it was incidental to their practice of fishing for food. Unlike the practice of fishing for food, the practice of selling fish was not an “integral” part of the Sto:lo culture. It was only after contact that the people had begun fishing to supply a market, one created by European demand for fish.
___________________________________R v Sappier (2006)_______________________________
Facts: Accused charged with break and enter of a dwelling-house with intent to commit an indictable offence -- Accused admitted all elements except that the house was a dwelling-house -- Accused and others entered house under construction and removed cupboards -- Others later burned down house -- Owner of house lived in another house -- Owner started building the house in 2000 -- The house design had bedrooms, a bathroom, a kitchen and a living room -- At time of the offence, the house was almost completed -- The roof, outer layer, inner walls, electrical and plumbing were finished -- The owner still needed to replace doors and windows destroyed by vandals and to finish ceiling, fixtures, sink, toilet and floors -- Owner planned to move in with girlfriend and daughter
HELD: Accused convicted of break and enter into a place other than a dwelling-house with intent to commit an indictable offence -- The house was not a dwelling-house at the time of the offence -- Owner intended house as a dwelling-house, but the house was never actually occupied as dwelling-house in the past -- House was not kept as a dwelling-house.
NOTE: R. v. Sappier; R. v. Gray ARE TOGETHER!
__________________________________R v Gray [2006]____________________________
Facts: Appeals by the Crown from the acquittal of Sappier, Polchies, and Gray on charges of unlawful possession or cutting of Crown timber under New Brunswick's Crown Lands and Forests Act. Two of the respondents, Sappier and Polchies, were Maliseet, while the third, Gray, was Mi'kmaq. All three argued that they possessed an aboriginal and treaty right to harvest timber for personal use. The logs had all been taken from lands traditionally harvested by the respondents' respective First Nations. Those taken by Sappier and Polchies were to be used to construct Polchies' house and for community firewood, while those taken by Gray were to be used to fashion furniture. The respondents were acquitted at trial. The acquittals of Sappier and Polchies were upheld by both the Court of Queen's Bench and the Court of Appeal, while Gray's acquittal was set aside by the Court of Queen's Bench but restored on appeal. The Crown now appealed to the Supreme Court of Canada.
HELD: Appeals dismissed. The respondents had established an aboriginal right to harvest wood for domestic uses. The evidence in these cases established that wood was critically important to the pre-contact Maliseet and Mi'kmaq, and it could be inferred from the evidence that the practice of harvesting wood for domestic uses was significant, though undertaken primarily for survival purposes. A practice of harvesting wood for domestic uses undertaken in order to survive was directly related to the pre-contact way of life and met the "integral to a distinctive culture" threshold. The nature of the right was not to be frozen in its pre-contact form, but rather determined in light of present-day circumstances. The right to harvest wood for the construction of temporary shelters was to be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. The site-specific requirement was also met. The Crown had not discharged its burden of proving the aboriginal right had been extinguished by pre-Confederation statutes. The legislation relied upon by the Crown as proof of extinguishment was primarily regulatory in nature, and the regulation of Crown timber through a licensing scheme did not meet the high standard of demonstrating a clear intent to extinguish the aboriginal right to harvest wood for domestic uses.
___________________________________R v Powley [2003] _________________________
Facts: Appeal by the Crown from the acquittals of the accused, Steve and Roddy Powley. The accused were members of a Métis community. They were acquitted of unlawfully hunting moose without a hunting licence and knowingly possessing game hunted in contravention of Ontario's Game and Fish Act. The trial judge found that members of the Métis community in the accused's area had an aboriginal right to hunt for food by virtue of the Constitution Act. The judge further found that the hunting legislation infringed that right without justification. The acquittals were upheld by the Superior Court of Justice and the Court of Appeal.
HELD: Appeal dismissed. The trial judge's finding of the existence of a historic Métis community and a contemporary Métis community in the accused's area was supported by the record. The trial judge correctly found that the accused were members of that Métis community. The fact that their ancestors had resided on a reserve for a period of time did not negate their Métis identity. Ontario's hunting legislation infringed the Métis aboriginal right, as it failed to recognize any Métis right to hunt for food. The infringement was not justified by conservation concerns, since even if the moose population were under threat, the Métis would still be entitled to a priority allocation to satisfy their subsistence needs.
R v Powley [2003]
o Since its difficult to identify who Metis people are, the court created 3 broad factors to identify them:
(4) Self-identification of Metis community
(5) Ancestral connection must be traced
(6) Community acceptance and member of modern Metis community
_______________Haida Nation v British Columbia (Minister of Forests) [2004]__________
Facts: Application by Haida Nation for the disclosure of information relating to Weyerhaeuser's logging operations on the Queen Charlotte Islands (Haida Gwaii). In 2002, Haida Nation successfully appealed a decision dismissing its application for judicial review of a decision by the Ministry of Forests approving the transfer of a tree farm licence from McMillan Bloedel to Weyerhaeuser. The appellate court held that the Crown and Weyerhaeuser both owed a duty to Haida Nation to consult with them and to attempt to arrange accommodations with respect to the tree farm licence, and ordered the parties to apply for necessary orders pending the conclusion of the proceedings. In the first part of its application, Haida Nation sought the production of Weyerhaeuser's reports relating to the location of red and yellow cedar that might be suitable for its cultural use. Weyerhaeuser argued that its only obligation was to ensure that the Crown consulted with Haida Nation, and that Haida Nation had not established the Crown's constitutional duty to consult. In the second part of its application, Haida Nation sought to be consulted on Weyerhaeuser's proposed transfer of the tree licence to a third party. In 2002, when the licence was transferred to Weyerhaeuser, the legislation required consultation and accommodation of the aboriginal interest. The Court of Appeal's remedy for Haida Nation having been deprived of this entitlement was to require Weyerhaeuser to participate with the Crown in the consultation and accommodation. In 2003, the legislation was amended to no longer require the Crown's consent regarding the transfer of a tree farm licence. Weyerhaeuser argued that as a licensee could now alienate its interest without government involvement, the Crown had no duty to consult with aboriginal groups, and it had no duty to co-operate with the Crown. It also argued that securities law in Canada and the US prevented it from disclosing its business plans to Haida Nation.
HELD: Application allowed in part. The court adjourned the first part of Haida Nation's application. There was no necessity for an order at this time. Weyerhaeuser had provided the Crown with access to the data in its reports, and the Crown was prepared to share this with Haida Nation. The court allowed the second part of the application. The licence held by Weyerhaeuser had a fundamental legal defect because the Crown failed to consult Haida Nation before effecting the transfer. If Weyerhaeuser sold its interest to a third party, it could not transfer title without this defect. Any transferee of the title would also be subject to a duty of consultation and accommodation. The disclosure sought by Haida Nation would not violate any securities laws because there was no danger of insider trading in this situation.
Haida Nation v BC (2004) – SCC held that s.35 obliged the Crown (federal and provincial) to consult aboriginal peoples when their land would be affected (cutting of trees). -The duty to consult and accommodate was established. S.35 obliged the Crown to consult within the Hadia people and accommodate their concerns.
o Held: In NOT doing so, the Crown breached s.35. However, the duty to consult does NOT extend to a private party like Weyerhaeuser.
________Taku River Tlingit First Columbia (Project Assessment Director) [2004]_________
Facts: Since 1994, a mining company has sought permission from the British Columbia government to re-open an old mine. The Taku River Tlingit First Nation ("TRTFN"), which participated in the environmental assessment process engaged in by the Province under the Environmental Assessment Act, objected to the company's plan to build a road through a portion of the TRTFN's traditional territory. The Province granted the project approval certificate in 1998. The TRTFN brought a petition to quash the decision on grounds based on administrative law and on its Aboriginal rights and title. The chambers judge concluded that the decision makers had not been sufficiently careful during the final months of the assessment process to ensure that they had effectively addressed the substance of the TRTFN's concerns. She set aside the decision and directed a reconsideration. The majority of the Court of Appeal upheld the decision, finding that the Province had failed to meet its duty to consult with and accommodate the TRTFN.
HELD: The appeal should be allowed.
The Crown's duty to consult and accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title, is grounded in the principle of the honour of the Crown, which derives from the Crown's assertion of sovereignty in the face of prior Aboriginal occupation. The Crown's honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1) of the Constitution Act, 1982. The duty to consult varies with the circumstances. It arises when a Crown actor has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. This in turn may lead to a duty to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation. The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
The Crown's obligation to consult the TRTFN was engaged in this case. The Province was aware of the TRTFN's title and rights claims and knew that the decision to reopen the mine had the potential to adversely affect the substance of the TRTFN's claims. The TRTFN's claim is relatively strong, supported by a prima facie case, as attested to by its inclusion in the Province's treaty negotiation process. While the proposed road is to occupy only a small portion of the territory over which the TRTFN asserts title, the potential for negative derivative impacts on the TRTFN's claims is high. On the spectrum of consultation required by the honour of the Crown, the TRTFN was entitled to more than minimum consultation under the circumstances, and to a level of responsiveness to its concerns that can be characterized as accommodation. It is impossible, however, to provide a prospective checklist of the level of consultation required.
In this case, the process engaged in by the Province under the Environmental Assessment Act fulfilled the requirements of its duty to consult and accommodate. The TRTFN was part of the Project Committee, participating fully in the environmental review process. Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns. The Province was not under a duty to reach agreement with the TRTFN, and its failure to do so did not breach the obligations of good faith that it owed the TRTFN. Finally, it is expected that, throughout the permitting, approval and licensing process, as well as in the development of a land use strategy, the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN.
Aboriginal Title:
-This is a famous leading decision of the SCC where the Court made its most definitive statement on the nature of aboriginal title in Canada:
_____________________Delgamuukw v British Columbia [1997] ____________________
Facts: the Appellants, chiefs of the Gitksan or Wet’suwet’en tribes, claimed aboriginal title – that is, an interest in land that arises by virtue of an aboriginal group’s historical association with those lands – over separate portions of 58,000 sq km in British Columbia. The province of BC counterclaimed for a declaration that the appellants have no right or interest in the territory or, alternatively, that the appellants’ cause of action ought to be for compensation from the government of Canada. He went on to discuss the decisions at trial and at the BC CA and matters related to factual findings at trial.
SCC Held: Aboriginal title is different from land usage rights, as it acknowledges Indigenous ownership of the land and the right to use in ways it had not been used traditionally. On the other hand, it is different from common land ownership, in that it is a Constitutional communal right deeply linked to Indigenous culture. Land governed by Aboriginal title can only be sold to the Federal Government, not to private buyers.
The ruling also made important statements about the legitimacy of Indigenous oral history ruling that oral histories were just as important as written testimony.
The Test for the Proof of Aboriginal Title:
In order to make out a claim for aboriginal title, the aboriginal group asserting the title MUST satisfy the following criteria:
(1) The land must have been occupied prior to sovereignty;
(2) If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
(3) At sovereignty, that occupation must be exclusive
For Aboriginal Title
Delgamuuk v British Columbia [1997]
o LAMER àlaid down rules of evidence and substance to govern the new trial. Provided reasons as the nature of aboriginal title. There are 5 differences between aboriginal title and non-aboriginal title:
6. Source of A.T derives from pre-sovereignty occupation (rather than post-sov grant from Crown)
7. A.T confers exclusive right to land and occupation of land
8. A.T in inalienable, except to the Crown. This means that the Crown must act as an intermediary between aboriginal owners and third parties (aboriginal owners must first surrender their land to Crown who then is under fiduciary duty to deal with land in best interest of aboriginal)
9. A.T can only be held communally by aboriginals as members of aboriginal nation
10. At is constitutionally protected (s.35) and s.35 must satisfy the Sparrow test of justification
__________________ Tsilhqot'in Nation v British Columbia [2007]____________________
Facts: Action commenced by Chief Roger William in his representative capacity as Xeni Gwet'in Chief on behalf of all Xeni Gwet'in and all Tsilhqot'in people. The plaintiff sought declarations of Tsilhqot'in title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach'ed (Brittany Triangle) and the Trapline Territory. The plaintiff also sought declarations of Tsilhqot'in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot'in Aboriginal right to trade in animal skins and pelts. The Tsilhqot'in people were a distinct Aboriginal group who had occupied the Claim Area for over 200 years. The action was provoked by proposed forestry activities in Tachelach'ed and the Trapline Territory.
HELD: Action allowed in part without prejudice. The Court was unable to make a declaration of Tsilhqot'in Aboriginal title in the context of the proceedings. However, the Court offered the opinion that Tsilhqot'in Aboriginal title did exist within and outside the Claim Area. Aboriginal title land was not "Crown land" as defined by provincial forestry legislation. The provincial Forest Act thus did not apply to Aboriginal title land. Tsilhqot'in people had an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial and cultural uses. Tsilhqot'in people had an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood. Land use planning and forestry activities had unjustifiably infringed Tsilhqot'in Aboriginal title and Tsilhqot'in Aboriginal rights. The claim for damages was dismissed without prejudice to a renewal of such claims as they might pertain to Tsilhqot'in Aboriginal title land.
“9. ABORIGINAL TITLE
a. Nature of Aboriginal Title
473 The origin and nature of Aboriginal title in Canada has been the subject of great debate both inside and outside the courts. Canadian courts began to outline and define Aboriginal title (also referred to as Indian title or native title) in St. Catherine's Milling and Lumber Company v. The Queen (1888), 14 App. Cas. 46 (P.C.). That case arose out of a timber licensing dispute in the Province of Ontario and did not directly involve Aboriginal people. In 1873 the Saulteaux Tribe ceded certain lands to the federal Crown when they entered into Treaty 3. The company claimed it had a right to log on those lands pursuant to a licence issued by the Canadian government. The Province argued it had the sole authority to license pursuant to s. 109 of the British North America Act.
474 The case was ultimately decided by the Privy Council who made several significant findings. The first was that Indian title to lands in Ontario originated from the Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1. Lord Watson, speaking for the Court, expressed the view that the land "tenure of the Indians was a personal and usufructuary right, dependant upon the good will of the Sovereign": St. Catherine's Milling, p. 54.
475 A usufruct is a legal right to use, benefit from and derive profit from property belonging to another person, provided the property is not damaged or altered in any way. According to this concept of title, the Aboriginal occupants have the right to live on the lands but they are prevented from doing anything that would affect the underlying title held by the Crown.
476 The Privy Council also found that the Crown "all along had a present proprietary estate in the land, upon which the Indian title was a mere burden": St. Catherine's Milling at p. 58. The personal usufructuary right held by the Saulteaux people disappeared when the lands were surrendered to the Crown under the 1873 treaty. The Court held that the federal government ceased to have jurisdiction over the lands pursuant to s. 91(24) of the BNA Act because the entire beneficial interest passed to the Province of Ontario under s. 109.
477 The Privy Council later qualified its description of the Aboriginal interest as a personal right. The Court explained that "personal" meant the land was "inalienable except by surrender to the Crown": Attorney General (Quebec) v. Attorney General (Canada), [1921] 1 A.C. 401, pp. 410-411 (P.C.) (the Star Chrome case). The right was thought to be held at the pleasure of the Crown and could be extinguished at any time.
478 The description of Aboriginal title as a usufructuary right was favoured by the Supreme Court of Canada into the 1980's: see, for example, Smith v. The Queen, [1983] 1 S.C.R. 554 at pp. 561-2; Guerin v. The Queen, [1984] 2 S.C.R. 335, per Dickson J. at p. 379 and p. 382. Viewed through a more contemporary lens, it is not surprising the Supreme Court of Canada has found that describing Aboriginal title as a usufructuary right is "not particularly helpful": Delgamuukw (S.C.C.) at para. 112. Given the nature of Aboriginal title as now defined by the jurisprudence, it is fair to say that it can no longer be characterized as a usufructuary right.
479 The historical view of Aboriginal title grew out of Canada's colonial past, what Professor Slattery calls "the Imperial Model of the Constitution": Slattery, B. "The Organic Constitution: Aboriginal Peoples And The Evolution of Canada" (1995) 34 Osg. Hall. L.J. 101 at p.103. This concept of the Constitution is constructed upon British law, primarily consisting of statutes passed by the Imperial Parliament. From this perspective Aboriginal people had no inherent jurisdiction over their lands and peoples, and had only those rights that were recognized by a Crown Act.
480 Prior to the 1970's, there was little support in Canadian law for the recognition of Aboriginal title, unless the claim was based on the Royal Proclamation, 1763. D.W. Elliott summarized the situation in an article entitled "Aboriginal Title" reproduced in Morse, ed., Aboriginal Peoples and the Law (Ottawa: Carleton University Press, 1985) 48 at p. 61:
- By January 1973, the Canadian common law position on the question of the legal status of aboriginal title was little different from that resulting from the St. Catharine's case eighty-four years earlier. Canadian courts recognized a Proclamation-based title. Although this title had legal status, it was subject to all the geographical and other uncertainties of the Proclamation. There was no clear indication from the courts as to whether the broader concept of an occupancy-based right had any status at common law.
482 Calder was a turning point which changed our basic understanding of Aboriginal rights and allowed us "to move from a framework grounded in imperial history to a framework more open to local history, tradition, and perspectives": Slattery, "The Organic Constitution" at p. 107.
483 In the Calder case the Nishga people sought a declaration of Aboriginal title to lands their ancestors had occupied and used from time immemorial. The Court split three ways, disagreeing on the result. A majority of the Court suggested that Aboriginal title may exist separately from the Royal Proclamation. Judson J., speaking for Maitland and Ritchie JJ., found that the geographical limitations of the Royal Proclamation meant that it had no bearing upon the question of "Indian title" in British Columbia. He went on to observe at p. 328:
- ... the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a "personal or usufructuary right". What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was "dependent on the goodwill of the Sovereign".
- In my opinion, in the present case, the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga Tribe might have had, when, by legislation, it opened up such lands for settlement, subject to the reserves of land set aside for Indian occupation.
486 Hall J., speaking for Spence and Laskin JJ., disagreed with Judson J. on the extinguishment issue. He concluded that if a right was to be extinguished, it must be done by specific legislation, not by general land legislation.
487 In what appears as a fresh approach to the issue of Aboriginal title, Hall J. recognized that the Nishga people were a distinctive cultural entity "with concepts of ownership indigenous to their culture and capable of articulation under the common law": Calder, p. 375.
488 A question left open by Hall J. was whether Aboriginal possession of the kind disclosed by the admitted and proved facts in Calder was sufficient juridical possession to give rise to proprietary rights. In the Court of Appeal, Calder v. A.G.B.C. (1970), 13 D.L.R. (3d) 64 (B.C.C.A.) at p. 66, Davey C.J.B.C. explained that although "the boundaries of the Nishga territory were well known to the tribes and to their neighbours ... These were territorial, not proprietary boundaries, and had no connection with notions of ownership of particular parcels of land". The issue of boundaries is one which arises repeatedly in Aboriginal title cases.
489 The Calder decision was applied in Baker Lake. The Inuit people who lived in the Baker Lake area brought an action in the Federal Court of Canada asserting claims over an undefined portion of the Northwest Territories, including approximately 78,000 square kilometres surrounding the community of Baker Lake. The plaintiffs' ancestors lived a nomadic existence on the "barren lands" and their survival depended primarily upon the availability of caribou.
490 The plaintiffs advanced "ownership" claims, including injunctions restraining the Crown from issuing land use permits, and mining companies from mining. They also requested a declaration that the claimed lands were not public or territorial lands. The plaintiffs also made non-proprietary claims of a title to hunt and fish.
491 In regard to the hunting and fishing rights claim, the plaintiffs sought "a declaration that the lands comprising the Baker Lake area" were "subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon": Baker Lake, p. 524. As Mahoney J. noted at p. 559: "The aboriginal title asserted here encompasses only the right to hunt and fish as their ancestors did".
492 Mahoney J. considered the source of Aboriginal title and at p. 556 referred to the Calder (S.C.C.) decision as:
- ... solid authority for the general proposition that the law of Canada recognizes the existence of an aboriginal title independent of The Royal Proclamation or any other prerogative act or legislation. It arises at common law.
- 1.
- 2.
- 3.
- 4.
This territorial standard of occupation has since been termed the Baker Lake test.
494 The standard used in the Baker Lake test reflected the limited content of the right claimed. Mahoney J. commented on the fact that the Inuit were few in number and wandered over a large area, saying at p. 561:
- The nature, extent or degree of the aborigines' physical presence on the land they occupied, required by the law as an essential element of their aboriginal title is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Inuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them.
496 The court considered that this right to hunt and fish could coexist with the radical or allodial title of the Crown, or with notional occupation by the Crown. However, it could not coexist with physical occupation by private landholders or by the trading posts of the Hudson's Bay Company. Mahoney J. said at p. 565:
- The coexistence of an aboriginal title with the estate of the ordinary private land holder is readily recognized as an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of a private owner to peaceful enjoyment of his land. However, its coexistence with the radical title of the Crown to land is characteristic of aboriginal title and the [Hudson's Bay] Company, in its ownership of Rupert's Land, aside from its trading posts, was very much in the position of the Crown. Its occupation of the territory in issue was, at most, notional.
- Once a statute has been validly enacted, it must be given effect. If its necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right.
- To the extent that their aboriginal rights are diminished by those laws [Territorial Lands Act; Public Lands Grants Act], the Inuit may or may not be entitled to compensation. That is not sought in this action. There can, however, be no doubt as to the effect of competent legislation and that, to the extent it does diminish the rights comprised in an aboriginal title, it prevails.
500 The next important development in Canadian Aboriginal law was the patriation of the Canadian Constitution with the enactment of the Constitution Act 1982, and in particular, s. 35(1). That section reads:
35(1)
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
501 In Professor Slattery's opinion this provision represents "a basic shift in our understanding of the constitutional foundations of Canada": "Organic Constitution" at p. 108. He pointed to the response of the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075 at pp. 1105-1106 where the Court quotes with approval an article by Professor Noel Lyon entitled, "An Essay On Constitutional Interpretation" (1988) 26 Osgoode Hall L.J. 95:
- ... the context of 1982 is surely enough to tell us that this is not just a codification of the case law on aboriginal rights that had accumulated by 1982. Section 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown.
503 The view that Aboriginal title is rooted in Canadian soil is embodied in the theory that title is sui generis. Put in more simple terms, Aboriginal title in this country is unique and in a class by itself.
504 In Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654 the Supreme Court of Canada said at p. 678 "that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although ... it is difficult to describe what more in traditional property law terminology".
505 The description of Aboriginal title as sui generis captures the essence of a proprietary right shaped by both the common law and Aboriginal legal systems. Aboriginal title does not belong to either one of these perspectives, and can only be explained and understood by reference to both: Delgamuukw (S.C.C) at para. 112. The Court went on to explain the underlying principles of this sui generis title at para. 113 of Delgamuukw:
- The idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions of that title. One dimension is its inalienability. Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is inalienable to third parties. This Court has taken pains to clarify that aboriginal title is only "personal" in this sense, and does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests: see Canadian Pacific Ltd. v. Paul, [1988] 2 S.C.R. 654, at p. 677.
- It had originally been thought that the source of aboriginal title in Canada was the Royal Proclamation, 1763: see St. Catherine's Milling. However, it is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law: see Kent McNeil, Common Law Aboriginal Title (1989), at p. 7. Thus, in Guerin, supra, Dickson J. described aboriginal title, at p. 376, as a "legal right derived from the Indians' historic occupation and possession of their tribal lands". What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward: see Kent McNeil, "The Meaning of Aboriginal Title", in Michael Asch, ed., Aboriginal and Treaty Rights in Canada (1997), 135, at p. 144. This idea has been further developed in Roberts v. Canada, [1989] 1 S.C.R. 322, where this Court unanimously held at p. 340 that "aboriginal title pre-dated colonization by the British and survived British claims of sovereignty" (also see Guerin, at p. 378). What this suggests is a second source for aboriginal title - the relationship between common law and pre-existing systems of aboriginal law.
- ... it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community.
- It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown ...
- The constitutional recognition of the right to fish cannot entail restoring the relationship between Indians and salmon as it existed 150 years ago. The world has changed. The right must now exist in the context of a parliamentary system of government and a federal division of powers. It cannot be defined as if the Musqueam Band had continued to be a self-governing entity, or as if its members were not citizens of Canada and residents of British Columbia. Any definition of the existing right must take into account that it exists in the context of an industrial society with all of its complexities and competing interests. The "existing right" in 1982 was one which had long been subject to regulation by the federal government. It must continue to be so because only government can regulate with due regard to the interests of all.
- ... afford legal protection to prior occupation in the present-day. Implicit in the protection of historical patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time.
- The adaptation was shaped by three needs: to ensure the continuity of aboriginal title and its recognition in a modern form; to supply appropriate remedies for the wrongs visited on Indigenous peoples; and to accommodate public and private interests in the lands concerned.
513 Van der Peet arose out of the prosecution of a regulatory offence pursuant to the Fisheries Act, R.S.C. 1970, c. F-14 and Regulations. Two members of the Sto:lo First Nation caught ten salmon in the Fraser River. They held an Indian food fishing licence which permitted them to catch fish for food. The federal fisheries Regulation specifically prohibited the sale or barter of any fish caught under the authority of such a licence. Ms. Van der Peet, the common law wife of one of the fishermen, sold the salmon for $50. She was charged under the Fisheries Act. She defended the charges against her on the basis that in selling the fish she was exercising an existing Aboriginal right to sell fish.
514 In the result, the majority of the Supreme Court upheld Ms. Van der Peet's conviction. In doing so, Lamer C.J.C. confirmed that s. 35(1) did not create the legal doctrine of Aboriginal rights. Those rights existed and were recognized under the common law prior to 1982. Lamer C.J.C. explained the foundation of the modern doctrine of Aboriginal rights at para. 30, as follows:
- ... the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.
- ... provide the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown. The substantive rights which fall within the provision must be defined in light of this purpose: the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.
- In order to fulfill the purpose underlying s. 35(1) - i.e., the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions - the test for identifying the aboriginal rights recognized and affirmed by s. 35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions and customs central to the aboriginal societies that existed in North America prior to contact with the Europeans.
- Aboriginal Indian title, let us recall, is a sort of sui generis right of usufruct implying the right to hunt and fish for subsistence ...
- Aboriginal title is the aspect of aboriginal rights related specifically to aboriginal claims to land; it is the way in which the common law recognizes aboriginal land rights.
- ... aboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to land.
520 The Supreme Court of Canada made a similar observation regarding Australian jurisprudence in Van der Peet at para. 38:
- Like that of the United States, Australia's aboriginal law differs in significant respects from that of Canada.
522 This view has been altered in the post-Constitution Act, 1982 jurisprudence. In the Supreme Court of Canada cases Adams and Côté, the Court confirmed that "claims to title to the land are simply one manifestation of a broader-based conception of aboriginal rights": Adams at para. 25.
523 Côté and Adams confirmed that site-specific Aboriginal rights to fish and hunt may be established over some or all of a group's traditional territory even where a claim of Aboriginal title is not made out. Aboriginal title does not subsist everywhere that Aboriginal rights are carried out, and Aboriginal title does not exist everywhere in a group's exclusive traditional territory.
524 This development shed new light upon previous arguments concerning the geographic extent of Aboriginal title. It was possible for an Aboriginal group to show that a particular practice, custom or tradition taking place on particular lands was integral to their distinctive culture so as to establish site-specific Aboriginal rights, but not establish Aboriginal title on those same lands. Thus, it was clear there were areas used by Aboriginal people upon which Aboriginal title did not exist.
525 In Adams, the Supreme Court rejected the position of the Quebec government that an Aboriginal fishing right could not be found on land in relation to which the Indians had surrendered their Aboriginal title. In Adams at paras. 26 and 27, it was noted "that some Aboriginal peoples were nomadic, varying the location of their settlements with the season and changing circumstances" and that these peoples' form of occupation and use of lands was not "sufficient to support a claim of title to the land" even though "many of the practices, customs and traditions of nomadic peoples that took place on the land were integral to their distinctive cultures".
526 In Côté the appellants, members of the Algonquin nation, were convicted of the offence of entering a controlled harvest zone in the Outaouais region of Quebec without paying a provincially required fee for motor vehicle access. Côté was also convicted of the offence of fishing within the zone without a valid licence. The appellants jointly challenged their convictions on the basis that they were exercising an Aboriginal right and concurrent treaty right to fish based on a claimed Aboriginal title to their ancestral lands.
527 As with the other pre-1990 cases, throughout the lower court proceedings the appellants in Côté framed their claim as a right to fish incidental to Indian title to their ancestral lands. They relied on the Baker Lake test of occupation.
528 The Supreme Court of Canada concluded in Côté that fishing for food within the lakes of the relevant territory was a significant part of the life of the Algonquin people. This gave rise to an Aboriginal right exercisable in that territory even in the absence of Aboriginal title.
529 At para. 67 of Côté the Supreme Court of Canada stated:
- ... I conclude that Frenette J. made a finding of fact that ... the ancestral lands of the Algonquins lay at the heart of the Ottawa River basin. These ancestral lands included the territory demarked by the Z.E.C. ... The Algonquins, as a socially organized but nomadic people, moved frequently within these lands. The traditional diet of the Algonquins depended on the season, but Parent concluded on the basis of the available anthropological evidence that the Algonquins predominantly relied on fish to survive during the fall season prior to winter.
531 The developments in Adams and Côté were described in an article written by Kent McNeil titled "Aboriginal Title and Aboriginal Rights: What's the Connection?" (1997), 36 Alta. L.R. 117. At p. 121 he said the following:
- The picture which emerges from Lamer C.J.C.'s discussions of the relationship between Aboriginal title and Aboriginal rights in Adams and Côté can be summarized as follows. Aboriginal title depends on proof of a connection with specific land that meets an as yet undefined threshold of sufficient occupation, one aspect of which is a degree of permanence that is also undefined.
533 The Court examined in abstract terms: the content of Aboriginal title, how it is protected by s. 35(1) and what is required for its proof. Although the majority of the judgment is considered obiter dicta, it is, as Lambert J.A. has observed, "very persuasive obiter": D. Lambert, "Van der Peet and Delgamuukw: Ten Unresolved Issues" (1998) 32 U.B.C. Law Rev. 249 at p. 255.
534 Lamer C.J.C. wrote the principle judgment in Delgamuukw (S.C.C.). He repeated at para. 2 that the court in Adams and Côté had "rejected the proposition that claims to Aboriginal rights must also be grounded in an underlying claim to Tsilhqot'in Nation v. British Columbia Page 169 aboriginal title". He also affirmed that Aboriginal title is a "distinct species of aboriginal right that was recognized and affirmed by s. 35(1)": Delgamuukw, para. 2. Lamer C.J.C. then authored a theory of Aboriginal rights in which those rights fall along a spectrum, depending on their degree of connection to the land.
535 Lamer C.J.C. adopted Dickson J.'s characterization of Aboriginal title in Guerin as sui generis. Lamer C.J.C. further stated at para. 111:
- Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive culture of aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. However, that range of uses is subject to the limitation that they must not be irreconcilable with the nature of the attachment to the land which forms the basis of the particular group's aboriginal title. This inherent limit, to be explained more fully below, flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple.
537 Lamer C.J.C. then provided the following explanation for the content of Aboriginal title at para. 117:
- ...first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group's attachment to that land.
539 Aboriginal title confers a right to exclusive use, occupation and possession to use the land for the general welfare and present-day needs of the Aboriginal community: Delgamuukw, para. 121. Aboriginal title also includes a proprietary-type right to choose what uses Aboriginal title holders can make of their title lands. Title is subject to an inherent limit which is defined by "the nature of the attachment to the land which forms the basis of the particular group's aboriginal title": Delgamuukw, para. 111. Such inherent limits prohibit those uses that would destroy the ability of the land to sustain future generations of Aboriginal peoples: Delgamuukw, para. 128.
540 Aboriginal title also has an economic component, which will ordinarily give rise to fair compensation when Aboriginal title is infringed, varying in amount with the nature and severity of the infringement "and the extent to which Aboriginal interests were accommodated": Delgamuukw, para. 169.
541 Aboriginal title, like Aboriginal rights more generally, is held communally: Delgamuukw, para. 115. It is inalienable to third parties, but can be surrendered to the Crown: Delgamuukw, paras. 129-131. It must be surrendered in order to use the lands in a way contrary to the inherent limit.
b. Test for Aboriginal Title
i. Pre-sovereignty Occupation
542 Aboriginal title is proven by demonstrating three critical elements, all of which are concerned with occupation of the land, and all of which must be met in order to make out a successful claim. The Aboriginal people must establish that they occupied the lands in question at the time when the Crown asserted sovereignty over those lands. "If present occupation is relied on as proof of occupation pre-sovereignty, there must be continuity between present and pre-sovereignty occupation." And finally, "occupation must have been exclusive": Delgamuukw, para. 143.
543 Aboriginal title arises out of the claimant's connection to their ancestral lands. The particular lands must have been occupied by the claimants prior to sovereignty. Although the Court notes that the group's connection with the land must have been integral to the distinctive culture of the claimants, Lamer C.J.C. also directed that "any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants": Delgamuukw, para. 151.
544 Lamer C.J.C. explained at para. 149 that the standard of occupation required to prove Aboriginal title may be established in a variety of ways:
- ... ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources: see McNeil, Common Law Aboriginal Title, at pp. 201-2. In considering whether occupation sufficient to ground title is established, "one must take into account the group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed": Brian Slattery, "Understanding Aboriginal Rights", at p. 758.
ii. Exclusivity
546 Exclusive occupation may be demonstrated by the ability to exclude others, including "the intention and capacity to retain exclusive control" of the lands: Delgamuukw, paras. 155-156. Proof of exclusivity must rely on both the perspective of the common law and the Aboriginal perspective, placing equal weight on each. The Court went on to explain at para. 156:
- ... exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands. Under those circumstances, exclusivity would be demonstrated by "the intention and capacity to retain exclusive control" (McNeil, Common Law Aboriginal Title, supra at p. 204). Thus, an act of trespass, if isolated, would not undermine a general finding of exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive occupation.
547 Continuity is not a mandatory element for proof of Aboriginal title. It becomes an aspect of the test where an Aboriginal claimant relies on present occupation to raise an inference of pre-sovereignty occupation of the claimed territory. Establishing continuity may be difficult for some claimants where their occupation shifted due to colonial settlement, disease and other post-sovereignty conditions.
548 Where an Aboriginal group provides direct evidence of pre-sovereignty use and occupation of land to the exclusion of others, such evidence establishes Aboriginal title. There is no additional requirement that the claimant group show continuous occupation from sovereignty to the present-day. Upon the assertion of sovereignty, Aboriginal title crystallized into a right at common law, and it subsists until it is surrendered or extinguished.
549 Aboriginal claimants do not need to establish an unbroken chain of continuity between present and prior occupation: Van der Peet, para. 65. Aboriginal occupation may have been disrupted "perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title": Delgamuukw (S.C.C.), para. 153. Claimants must demonstrate that a substantial connection between the people and the land has been maintained: Delgamuuukw (S.C.C), para. 154.
550 Because Aboriginal title is grounded in the continuing relationship between Aboriginal people and the land, it cannot be made the subject of a transfer. This common law principle meant settlers had to derive their title from the Crown, not from Aboriginal inhabitants.
551 In Delgamuukw (S.C.C.) Lamer C.J.C. said at para. 126:
- Implicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time.
- The relevance of the continuity of the relationship of an aboriginal community with its land here is that it applies not only to the past, but to the future as well.
- I should also note that there is a strong possibility that the precise nature of occupation will have changed between the time of sovereignty and the present. I would like to make it clear that the fact that the nature of occupation has changed would not ordinarily preclude a claim for aboriginal title, as long as a substantial connection between the people and the land is maintained. The only limitation on this principle might be the internal limits on uses which land that is subject to aboriginal title may be put, i.e., uses which are inconsistent with continued use by future generations of aboriginals.
554 Marshall; Bernard is the Supreme Court of Canada's most recent decision on Aboriginal title. That case stands for the proposition that Aboriginal title is not co-extensive with any particular Aboriginal group's traditional territory. The parties in the case at bar appear to accept that proposition but fail to agree upon what that means, taking into account the facts in this case.
555 The parties in this case agree that the modern cases have defined Aboriginal title as an Aboriginal right, grounded in the continuing relationship between the Aboriginal people themselves and the land. They are divided on the application of the principles and in particular on the impact of the Supreme Court's decision in Marshall; Bernard. The plaintiff is accused of misconceiving Aboriginal title as an over arching title, alleged to exist throughout the entire traditional territory of the Tsilhqot'in Nation. The defendants say the plaintiff arbitrarily defines the Claim Area, as one part of the larger traditional territory.
556 The plaintiff says that the above characterization of his claim is entirely incorrect. He says the defendants have taken an untenably narrow view of Aboriginal title, completely divorced from the realities of Aboriginal life. The plaintiff argues that the defendants misunderstand the characterization of definite tracts of land used by the Tsilhqot'in people for hunting, fishing and gathering, and are attempting to confine Aboriginal title to narrowly defined pinpoint sites. He says British Columbia's acknowledgement that Aboriginal title might be established in some exceptional circumstances to a specific "salt lick" or a "narrow defile" where game concentrate each year as opposed to a more broadly used area for hunting, fishing and gathering, is entirely incorrect. In the submission of the plaintiff, this is not the promise of Aboriginal title foretold by the foregoing decisions. Due to the importance of the Marshall; Bernard decision, I must consider in detail the decisions of the lower courts and the Supreme Court of Canada.
557 In R. v. Bernard, [2000] 3 C.N.L.R. 184 (N.B. Prov. Ct.), Mr. Bernard, a Mi'kmaq person, cut timber on Crown lands near Miramichi, New Brunswick. He was charged under the provincial statute. In his defence he claimed treaty rights and Aboriginal title to a watershed area that included the Crown lands where the particular cut blocks were located.
558 In rejecting the Aboriginal title claim to the Miramichi watershed, Lordon P.C.J. made the following findings at paras. 98-100 and 103-110:
- a)
- b)
- c)
- d)
- e)
- f)
- g)
559 In the trial judge's view "[o]ccasional forays for hunting, fishing and gathering are not sufficient to establish Aboriginal title in the land": R. v. Bernard, para. 107. The accused were convicted.
560 An appeal to the Court of Queen's Bench sitting as a Summary Conviction Appeal Court confirmed Mr. Bernard's conviction: R. v. Bernard, 2001 NBQB 82, 239 N.B.R. (2d) 173. The defendant then appealed to the Court of Appeal, where the majority set aside the conviction and entered an acquittal: R. v. Bernard, 2003 NBCA 55, 262 N.B.R. (2d) 1.
561 In the New Brunswick Court of Appeal, Daigle J.A. disagreed with the trial judge on the standard of occupation required to establish Aboriginal title. Daigle J.A. was satisfied that the claimed area was subject to Miramichi Mi'kmaq Aboriginal title. Daigle J.A. also upheld the treaty defence, finding the harvesting of logs to be the contemporary form of a treaty right. Robertson J.A. also disagreed with the trial judge on the standard of occupation required to establish Aboriginal title. Robertson J.A. refrained from answering the question as to whether the evidence was sufficient to support a declaration of Aboriginal title, concluding it was unnecessary in the circumstances. Instead he overturned the conviction on the basis of the existence of a treaty right to harvest and sell logs. Deschenes J.A., dissenting, would not have interfered with the trial judge's findings of fact.
562 In expressing his disagreement with the trial judge, Daigle J.A. said the following at paras. 86-88:
- In my view, the trial judge's statement in para. 107 that "occasional" use or "occasional forays for hunting, fishing and gathering are not sufficient to establish aboriginal title in the land" is incorrect and exhibits a fundamental misunderstanding of what Delgamuukw requires as sufficient elements of physical occupation to ground title. In para. 74, above, I quoted a passage from Delgamuukw in which Lamer C.J. refers specifically to a number of factors to be taken into account in determining the sufficiency of physical occupation. In providing guidance concerning the concept of occupation he first states that physical occupation can be established in a variety of ways, one of which is the "regular use of definite tracts of land for hunting, fishing or otherwise exploiting resources". On this point, he references the work of Prof. McNeil, excerpts of which I have quoted in para. 77 above.
- The relevant factors emphasized are the group's size, manner of life, material resources and the character of the lands claimed. In particular, the inclusion of "manner of life" in the list of factors to be considered for occupation at common law would undoubtedly include consideration of the seasonal pattern of exploitation of the resources of the entire Northwest Miramichi watershed by the Mi'kmaq. I pointed out earlier the overarching principle set out in Delgamuukw that the aboriginal perspective must be taken into account alongside the perspective of the common law. Therefore, as a matter of law, the same factor of the Mi'kmaq subsistence pattern, which represents the essential feature of their perspective on the occupation of their lands, must be taken into account in determining the requisite degree of occupation.
- As to the meaning of "regular use" of land, the following comments by Prof.McNeil, tacitly adopted although not quoted by Lamer C.J. in Delgamuukw, shed light on the nature of the use of land that amounts to physical occupation at common law (p. 202):
- Probably even outlying areas that were visited occasionally, and regarded as being under their exclusive control, would also be occupied by them in much the same way as the waste of a manor would be occupied by the lord ...
- As to occupation of land by a hunter-gatherer aboriginal group such as the Miramichi Mi'kmaq, it was the author's opinion that such a group "who habitually and exclusively ranged over a definite tract of land ... exploiting natural resources in accordance with their own interests and way of life, would have been in occupation of that land ... As to the extent of their occupation, it would include not just land in actual use by them at any given moment, but all land within their habitual range" (p. 204).
564 The trial judge recognized that Nova Scotia was Mi'kmaq territory, unchallenged by any other Aboriginal group. He concluded that the Mi'kmaq probably had Aboriginal title to lands around their local communities but not to the cutting sites. In reaching that conclusion, the trial judge explored the degree of occupancy necessary to establish Aboriginal title saying at para. 139:
- The problem for the defendant is that mere occupancy of land does not necessarily establish aboriginal title: (see Delgamuukw, supra, at paragraph 138, where Lamer C.J. commented on R. v. Adams, [1996] 3 S.C.R. 101). If an aboriginal group has used lands only for certain limited activities and not intensively, the group might have an aboriginal right to carry on those activities, but it doesn't have title.
- The line separating sufficient and insufficient occupancy for title seems to be between nomadic and irregular use of undefined lands on the one hand and regular use of defined lands on the other. Settlements constitute regular use of defined lands, but they are only one instance of it. There is no persuasive evidence that the Mi'kmaq used the cutting sites at all, let alone regularly.
- Occasional use of land prior to contact or at the time of sovereignty is not enough to establish Aboriginal title. I reject the submission as put forth by the Appellants that the Mi'kmaq occupied all of Nova Scotia prior to contact to the extent required to prove title. The term occupation is not an absolute term as it applies to the concept Aboriginal title. There are degrees of occupation. Some use and occupation of the lands may be sufficient to establish particular rights short of title. As noted by Judge Curran, given the rather small number of Mi'kmaq at the time of contact and at the time of sovereignty they simply could not use all of the land in Nova Scotia at the same time.
568 The Nova Scotia Court of Appeal allowed the appeal, set aside the convictions and ordered new trials: R. v. Marshall, 2003 NSCA 105, [2003] N.S.J. No. 361. Cromwell J.A. and Oland J.A. concluded that the Supreme Court of Canada had only provided limited guidance on the nature of Aboriginal occupancy that must be proven to establish Aboriginal title. They concluded at paras. 135-138 that:
- (a)
- (b)
569 The Nova Scotia Court of Appeal in Marshall concluded that the lower courts had erred in requiring proof of regular, intensive use of the specific cutting sites to establish Aboriginal title. Cromwell J.A. stated at paras. 183-184 (Saunders J.A. also concurring on this point):
- The test as expressed in Delgamuukw is whether the claimant has established exclusive occupation at sovereignty of the lands claimed. The question, in my opinion, is not whether exclusive occupation of the cutting sites was established, but whether exclusive occupation of a reasonably defined territory which includes the cutting sites, was established. Insistence on proof of acts of occupation of the specific cutting sites within that territory is, in my opinion, not consistent with either the common law or the aboriginal perspective on occupation.
- I have not overlooked the Crown submission that the appellants have not established the boundaries of their occupation with sufficient certainty to demonstrate occupation of the whole present day province of Nova Scotia. In my view, that is not an issue which it is necessary for us to resolve in this case. To make out the defence on which they rely (and putting aside questions of whether proof of exclusive occupancy at sovereignty would afford a defence), the appellants do not have to establish Mi'kmaq aboriginal title to the whole province (although that is their claim); they have to show aboriginal title to the cutting sites. The question, therefore, is not whether the outer limits of the area of title have been established, but whether the cutting sites fall within an area to which aboriginal title has been proved.
571 At para. 53, McLachlin C.J.C. confirmed the modern concept of a variety of independent Aboriginal rights. She went on to say the following at para. 54:
- One of these rights is aboriginal title to land. It is established by aboriginal practices that indicate possession similar to that associated with title at common law. In matching common law property rules to aboriginal practice we must be sensitive to the context-specific nature of common law title, as well as the aboriginal perspective. The common law recognizes that possession sufficient to ground title is a matter of fact, depending on all the circumstances, in particular the nature of the land and the manner in which the land is commonly enjoyed: Powell v. McFarlane (1977), 38 P. & C.R. 452 (Ch. D.), at p. 471. For example, where marshy land is virtually useless except for shooting, shooting over it may amount to adverse possession: Red House Farms (Thorndon) Ltd. v. Catchpole, [1977] E.G.D. 798 (Eng. C.A.). The common law also recognizes that a person with adequate possession for title may choose to use it intermittently or sporadically: Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.), per Wilson J.A. Finally, the common law recognizes that exclusivity does not preclude consensual arrangements that recognize shared title to the same parcel of land: Delgamuukw, at para. 158
- This review of the general principles underlying the issue of aboriginal title to land brings us to the specific requirements for title set out in Delgamuukw. To establish title, claimants must prove "exclusive" pre-sovereignty "occupation" of the land by their forebears: per Lamer C.J.C., at para. 143.
- "Occupation" means "physical occupation". This "may be established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources": Delgamuukw, per Lamer C.J., at para. 149.
- "Exclusive" occupation flows from the definition of aboriginal title as "the right to exclusive use and occupation of land": Delgamuukw, per Lamer C.J., at para. 155 (emphasis in original). It is consistent with the concept of title to land at common law. Exclusive occupation means "the intention and capacity to retain exclusive control", and is not negated by occasional acts of trespass or the presence of other aboriginal groups with consent (Delgamuukw, at para. 156, citing McNeil, at p. 204). Shared exclusivity may result in joint title (para. 158). Non-exclusive occupation may establish aboriginal rights "short of title" (para. 159).
- It follows from the requirement of exclusive occupation that exploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and fishing rights exercised in a particular area will translate to a hunting or fishing right. This is plain from this Court's decisions in Van der Peet, Nikal, [1996] 1 S.C.R. 1013, Adams and Côté. In those cases, aboriginal peoples asserted and proved ancestral utilization of particular sites for fishing and harvesting the products of the sea. Their forebears had come back to the same place to fish or harvest each year since time immemorial. However, the season over, they left, and the land could be traversed and used by anyone. These facts gave rise not to aboriginal title, but to aboriginal hunting and fishing rights.
- ... whether the pre-sovereignty practices established on the evidence correspond to the right of title to land. These practices must be assessed from the aboriginal perspective. But, as discussed above, the right claimed also invokes the common law perspective. The question is whether the practices established by the evidence, viewed from the aboriginal perspective, correspond to the core of the common law right claimed.
- The common law, over the centuries, has formalized title through a complicated matrix of legal edicts and conventions. The search for aboriginal title, by contrast, takes us back to the beginnings of the notion of title. Unaided by formal legal documents and written edicts, we are required to consider whether the practices of aboriginal peoples at the time of sovereignty compare with the core notions of common law title to land. It would be wrong to look for indicia of aboriginal title in deeds or Euro-centric assertions of ownership. Rather, we must look for the equivalent in the aboriginal culture at issue.
- Aboriginal societies were not strangers to the notions of exclusive physical possession equivalent to common law notions of title: Delgamuukw, at para. 156. They often exercised such control over their village sites and larger areas of land which they exploited for agriculture, hunting, fishing or gathering. The question is whether the evidence here establishes this sort of possession.
- The first of these sub-issues is the concept of exclusion. The right to control the land and, if necessary, to exclude others from using it is basic to the notion of title at common law. In European-based systems, this right is assumed by dint of law. Determining whether it was present in a pre-sovereignty aboriginal society, however, can pose difficulties. Often, no right to exclude arises by convention or law. So one must look to evidence. But evidence may be hard to find. The area may have been sparsely populated, with the result that clashes and the need to exclude strangers seldom if ever occurred. Or the people may have been peaceful and have chosen to exercise their control by sharing rather than exclusion. It is therefore critical to view the question of exclusion from the aboriginal perspective. To insist on evidence of overt acts of exclusion in such circumstances may, depending on the circumstances, be unfair. The problem is compounded by the difficulty of producing evidence of what happened hundreds of years ago where no tradition of written history exists.
- It follows that evidence of acts of exclusion is not required to establish aboriginal title. All that is required is demonstration of effective control of the land by the group, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so. The fact that history, insofar as it can be ascertained, discloses no adverse claimants may support this inference. This is what is meant by the requirement of aboriginal title that the lands have been occupied in an exclusive manner.
579 At para. 67, she addressed the issue of continuity, saying:
- The requirement of continuity in its most basic sense simply means that claimants must establish they are right holders. Modern-day claimants must establish a connection with the pre-sovereignty group upon whose practices they rely to assert title or claim to a more restricted aboriginal right. The right is based on pre-sovereignty aboriginal practices. To claim it, a modern people must show that the right is the descendant of those practices. Continuity may also be raised in this sense. To claim title, the group's connection with the land must be shown to have been "of a central significance to their distinctive culture": Adams, at para. 26. If the group has "maintained a substantial connection" with the land since sovereignty, this establishes the required "central significance": Delgamuukw, per Lamer C.J., at paras. 150-51.
- the final step is to translate the facts found and thus interpreted into a modern common law right. The right must be accurately delineated in a way that reflects common law traditions, while respecting the aboriginal perspective.
- In summary, exclusive possession in the sense of intention and capacity to control is required to establish aboriginal title. Typically, this is established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources: Delgamuukw, at para. 149. Less intensive uses may give rise to different rights. The requirement of physical occupation must be generously interpreted taking into account both the aboriginal perspective and the perspective of the common law: Delgamuukw, at para. 156. These principles apply to nomadic and semi-nomadic aboriginal groups; the right in each case depends on what the evidence establishes. Continuity is required, in the sense of showing the group's descent from the pre-sovereignty group whose practices are relied on for the right. On all these matters, evidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability. The ultimate goal is to translate the pre-sovereignty aboriginal right to a modern common law right. This must be approached with sensitivity to the aboriginal perspective as well as fidelity to the common law concepts involved.
583 It appears to me that The Supreme Court of Canada has set a high standard, requiring "regular use or occupancy of definite tracts of land". The Supreme Court has now clearly stated that "[t]o say that title flows from occasional entry and use is inconsistent with [...] the approach to aboriginal title which this Court has consistently maintained": Marshall; Bernard, at para. 59.
584 Bearing in mind the directions I have set out above, I must now consider the evidence in the manner directed by the Supreme Court to see whether this is an appropriate case for a declaration of Aboriginal title. ”
“20. INFRINGEMENT OF ABORIGINAL TITLE
1053 I have concluded that the provisions of the Forest Act do not apply to Aboriginal title land. If I am wrong, it becomes necessary for me to consider whether such legislation or the application of the legislative scheme established by the Forest Act infringes Tsilhqot'in Aboriginal title. I conclude that the passing of the Forest Act does not infringe Aboriginal title but I have no difficulty in finding that the application of the legislative scheme established by the provisions of the Forest Act does infringe that title for the following reasons.
a. General Principles
1054 Today we understand that Aboriginal title confers "the right to the land itself": Delgamuukw (S.C.C.) at para. 138. Aboriginal title "encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures": Delgamuukw (S.C.C.) at para. 117. The Crown does not have a present proprietory interest in such lands. The Crown's interest is residual and is only perfected on surrender of the land by the Aboriginal title holders.
1055 Aboriginal rights are not absolute. Infringement by the Crown "is justified in pursuance of a compelling and substantial legislative objective for the good of larger society": Marshall; Bernard at para. 39, citing Sparrow at p. 1113. This holds true for all Aboriginal rights.
1056 The Supreme Court of Canada first established the infringement and justification framework in Sparrow. Dickson C.J.C. and La Forest J., writing jointly for the Court, described this framework as a vehicle for reconciling Aboriginal rights with the interests of the greater public. Starting from the premise that the Crown's powers must be reconciled with its duties to Aboriginal peoples, Dickson C.J.C. and La Forest J. at pp. 1109-1110 said:
- ... the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. Such scrutiny is in keeping with the liberal interpretive principle enunciated in Nowegijick [1983] 1 S.C.R. 29, and the concept of holding the Crown to a high standard of honourable dealing with respect to the aboriginal peoples of Canada ...
- ...
- The government is required to bear the burden of justifying any legislation that has some negative effect on any aboriginal right protected under s. 35(1).
1058 A person claiming an Aboriginal right bears the onus of establishing that the government's conduct amounts to a prima facie infringement or denial of that right. Once this onus is discharged, the burden then shifts to the Crown to demonstrate that its conduct was justified. Proof of infringement of an Aboriginal right protected by s. 35(1) triggers the Crown's burden to justify its conduct.
1059 The test for infringement was set out in Sparrow at pp. 1111-1112, as follows:
- The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1). Parliament is not expected to act in a manner contrary to the rights and interests of aboriginals, and, indeed, may be barred from doing so by the second stage of s. 35(1) analysis. The inquiry with respect to interference begins with a reference to the characteristics or incidents of the right at stake.
- ...
- To determine whether the fishing rights have been interfered with such as to constitute a prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving a prima facie infringement lies on the individual or group challenging the legislation.
1061 In R. v. Gladstone, [1996] 2 S.C.R. 723, the Supreme Court revisited the criteria for infringement of an Aboriginal right and further clarified the concepts raised in the Sparrow case. In Gladstone, Lamer C.J.C., for the majority, stated, at para. 43:
- The Sparrow test for infringement might seem, at first glance, to be internally contradictory. On the one hand, the test states that the appellants need simply show that there has been a prima facie interference with their rights in order to demonstrate that those rights have been infringed, suggesting thereby that any meaningful diminution of the appellants' rights will constitute an infringement for the purpose of this analysis. On the other hand, the questions the test directs courts to answer in determining whether an infringement has taken place incorporate ideas such as unreasonableness and "undue" hardship, ideas which suggest that something more than meaningful diminution is required to demonstrate infringement. This internal contradiction is, however, more apparent than real. The questions asked by the Court in Sparrow do not define the concept of prima facie infringement; they only point to factors which will indicate that such an infringement has taken place. Simply because one of those questions is answered in the negative will not prohibit a finding by a court that a prima facie infringement has taken place; it will just be one factor for a court to consider in its determination of whether there has been a prima facie infringement.
- The fact that s. 35(1) of the Act does not fall within the ambit of s. 1 of the Canadian Charter of Rights and Freedoms - as acknowledged in Sparrow at p. 287 C.C.C., p. 408 D.L.R. - suggests that caution should be exercised in determining what factors are relevant to the issues involved in the first stage of the test - infringement. Consideration of factors which go to the issue of justification would minimize the importance of aboriginal rights established by s. 35(1).
- The purpose of the three questions posed in the first stage of the test (is the limitation unreasonable; does the regulation impose undue hardship; and does the regulation deny to the holders of the right their preferred means of exercising that right) is, in our view, to ensure that only meritorious claims are considered. The onus on the applicant is not heavy. The establishment of an infringement on a prima facie basis is sufficient. To include consideration of such factors as priority and consultation - factors which are relevant to the second stage of the test - would adversely affect the onus of proof resting upon the applicant. It would diminish the safeguard for aboriginal rights established by s. 35(1) as interpreted by the Supreme Court in Sparrow.
1064 In Delgamuukw at para. 166, Lamer C.J.C. explained that Aboriginal title encompasses three features: the right to exclusive use and occupation of land; the right to choose to what uses land can be put; and that lands held pursuant to Aboriginal title have an inescapable economic component.
1065 There is potential for substantial interference with Aboriginal title at every stage of government land-use planning with respect to Aboriginal title lands. For example, the granting of conditional harvesting rights to third parties in an area encompassing land held subject to Aboriginal title stands in conflict with the right to exclusive use and occupation of the land, and the right to choose to what uses land can be put. Similarly, the economic impact of such grants may arise long before cutting occurs on the ground. Once it is known that the timber on Aboriginal title land is subject to conditional harvesting rights granted by the Crown, the economic value of that timber to the title holder is undermined.
1066 To have any significance for Aboriginal people, Aboriginal title must bring with it the collective right to plan for the use and enjoyment of that land for generations to come. Prior to European colonization, the lands and forests of Tsilhqot'in traditional territory supplied Tsilhqot'in people with sustenance and protection from the elements, as well as a moderate livelihood. Tsilhqot'in people were able to make all land use decisions with respect to that territory. The imposition of the provincial forestry management scheme removes the ability of Tsilhqot'in people to control the uses to which the land is put. Such a scheme also creates uncertainty concerning the protection of the land and forests for future generations of Aboriginal rights holders. In addition, it deprives Tsilhqot'in people of the ability to realize certain economic gains associated with harvesting rights. In my view, this constitutes an unreasonable limitation on Aboriginal title, denying Tsilhqot'in people their preferred means of enjoying the benefits of such title. The cumulative effects of these government decisions with respect to timber harvesting on Aboriginal title lands constitute a prima facie infringement and requires justification.
1067 The application of the provincial forestry scheme to Aboriginal title lands amounts to a clear denial of Aboriginal title. Planning to use the land and resources of an Aboriginal group without acknowledging the constitutionally entrenched interests of the Aboriginal group requires justification. Infringement or denial of title can occur at each stage of any land use process and so, at each stage, the Crown must justify its proposed actions with respect to Aboriginal title land.
1068 In the context of an Aboriginal right to fish, the directions in Sparrow are clear. The court must determine the following: is the limitation unreasonable; does the regulation impose undue hardship; and does the regulation deny to the holders of the right their preferred means of exercising that right? An application of this test to Aboriginal title land is possible. By failing to acknowledge Aboriginal title, the Crown's plans for Aboriginal title land are unreasonable and impose undue hardship on the title holders. Land use planning that contemplates the removal of an asset attached to the land, without recognition of the true owner of that asset, denies to the holders of Aboriginal title the means of exercising and enjoying the benefits of such title.
1069 In Haida Nation (B.C.C.A.), at para. 81, Lambert J.A. stated:
- I consider that the only real question at this stage is whether the aboriginal people have been constrained in the use of the land subject to the aboriginal title, or, in the case of an aboriginal right, whether the holders of the right have been prevented from exercising it by their preferred means.
1071 In addition, the argument advanced by British Columbia fails to acknowledge the denial of Aboriginal title implicit at every stage of the planning process. That denial also constitutes an infringement.
1072 In Haida Nation, at para. 84, Lambert J.A. stated:
- In the case of the provincial Crown, the infringing actions may be expected to lie in passing the Forest Act, issuing the Tree Farm Licence, approving the Management Plans, granting the Cutting Permits, and overseeing Weyerhaeuser's compliance with the scheme embodied in those legislative and exclusive licence provisions. I am only giving an outline of potential infringements.
b. Application
1074 I am not prepared to say that the mere passing of legislation by a provincial Legislative Assembly, even if it has the potential to infringe Aboriginal title land, is a prima facie infringement. For that reason, I do not consider the passing of any forestry legislation to be a prima facie infringement on Tsilhqot'in Aboriginal title land. It is not legislation directed at Aboriginal title land but general legislation concerning a Crown asset. It is only when public officials seek to engage the provisions of such legislation in relation to Aboriginal title land that a prima facie infringement occurs.
1075 For example, when timber on Aboriginal title land is included in a TSA pursuant to the relevant legislation, there is a prima facie infringement of Aboriginal title. Thus, the inclusion of timber on Tsilhqot'in Aboriginal title land in the Williams Lake TSA is an infringement on Tsilhqot'in Aboriginal title. Each administrative step taken thereafter that might ultimately result in timber removal and sale by third parties is also an infringement of Tsilhqot'in Aboriginal title.
1076 It follows that the approval of cut blocks in forest development plans and the allocation of cutting permits are equally an infringement on Tsilhqot'in Aboriginal title.
1077 It bears repeating that the right to use resources, the right to choose land use, and the right to direct and benefit from the economic potential of the land are all aspects of Aboriginal title. If the Crown is engaged in land use planning for its own economic benefit and the economic benefit of third parties, then such activities are a direct infringement on any Aboriginal title. The rights holders do not have to wait for a decision to harvest timber before there has been an infringement. The infringement takes place the moment Crown officials engage in the planning process for the removal of timber from land over which the Crown does not have a present proprietary interest.
1078 As the Supreme Court observed at p. 1110 of Sparrow:
- Section 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective. Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation.
- In a normal setting under the Canadian Charter of Rights and Freedoms, where a statute confers a broad, unstructured administrative discretion which may be exercised in a manner which encroaches upon a constitutional right, the court should not find that the delegated discretion infringes the Charter and then proceed to a consideration of the potential justifications of the infringement under s. 1. Rather, the proper judicial course is to find that the discretion must subsequently be exercised in a manner which accommodates the guarantees of the Charter. See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1078-79; R. v. Swain, [1991] 1 S.C.R. 933, at pp. 1010-11; and Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 720.
- I am of the view that the same approach should not be adopted in identifying infringements under s. 35(1) of the Constitution Act, 1982. In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfill their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test.
- It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts. As noted in R. v. Adams, [1996] 3 S.C.R. 101, at para. 54, the government "may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance". It should be observed that, since October 2002, British Columbia has had a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries' and agencies' operational guidelines. Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretion and provide a guide for decision-makers.
21. JUSTIFICATION OF INFRINGEMENT OF ABORIGINAL TITLE
a. General Principles
1082 Government power must be reconciled with government duty, "and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies Aboriginal rights": Sparrow at p. 1109.
1083 The test for the justification of infringement of Aboriginal title has two parts. The infringement must be in furtherance of a compelling and substantial legislative objective: Delgamuukw (S.C.C.), at para. 161. The infringement must also be consistent with the fiduciary relationship that exists between the Crown and Aboriginal peoples: Delgamuukw (S.C.C.), at para. 162.
1084 In this case, British Columbia bears the burden of justifying infringements caused by provincially authorized forestry activities.
b. Compelling and Substantial Legislative Objective
1085 There is a range of legislative objectives that may justify infringement of Aboriginal title. These objectives arise from the need to reconcile the fact that Aboriginal societies exist within and are part of a broader social, political and economic community: Delgamuukw (S.C.C.), at para. 161; Gladstone, at para. 73. The development of agriculture, forestry, mining and hydro-electric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support these aims, are the kinds of objectives that may justify the infringement of Aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives is ultimately a question of fact that must be examined on a case-by-case basis: Delgamuukw (S.C.C.), at para. 165.
1086 The foregoing view was initially developed by Lamer C.J.C. in the Van der Peet trilogy (Van der Peet, Gladstone, and R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672). In these cases, Lamer C.J.C. expressed the opinion that government limits on the exercise of Aboriginal rights are a necessary part of that reconciliation, provided such "limits are of sufficient importance to the broader community as a whole": Gladstone, at para. 73. A discussion of the minority opinions of McLachlin J. (as she then was) in Van der Peet and Gladstone are set out later in this judgment under the heading "Reconciliation".
1087 In the context of the disposition of Crown resources, the focus is on the particular measure or government activity and not on the overall legislative regime. Normally, such cases proceed on the premise that the Crown's infringing activity is constitutionally valid. It is this validity that raises potential for it to be an infringement. If the activity was unconstitutional the act itself is invalid and there is no need to consider infringement.
1088 I have already decided that provincial forestry legislation is inapplicable to Aboriginal title land. The discussion that follows is upon the basis that this conclusion is incorrect and that British Columbia's forestry legislation does apply to Aboriginal title land. What follows also takes into account the fact that there has been a finding of an infringement of title such as I have made in the preceding section.
1089 There can be no doubt that forestry falls within the range of government activities that might justify infringement of Aboriginal title. Generally speaking, the development of forest resources, and the protection of the environment and wildlife are all valid government objectives that may justify infringement of Aboriginal title and other Aboriginal rights.
1090 However, the analysis cannot end there. In this case I am concerned not with the general, but the specific. Can the Province justify its forestry activities in the Claim Area where such activities infringe Tsilhqot'in Aboriginal title? British Columbia must prove that it has a compelling and substantial legislative objective for the forestry practices, not just generally in British Columbia, but in the Claim Area in particular.
1091 In Delgamuukw, Lamer C.J.C. reiterated at para. 161 that legitimate government objectives include "the pursuit of economic and regional fairness". Lamer C.J.C. went on to state that: "By contrast, measures enacted for relatively unimportant reasons such as sports fishing without a significant economic component ("Adams", supra), would fail this aspect of the test of justification."
1092 This conclusion flows from Adams where the Court said at para. 58:
- I have some difficulty in accepting, in the circumstances of this case, that the enhancement of sports fishing per se is a compelling and substantial objective for the purposes of s. 35(1). While sports fishing is an important economic activity in some parts of the country, in this instance, there is no evidence that the sports fishing that this scheme sought to promote had a meaningful economic dimension to it. On its own, without this sort of evidence, the enhancement of sports fishing accords with neither of the purposes underlying the protection of aboriginal rights, and cannot justify the infringement of those rights. It is not aimed at the recognition of distinct aboriginal cultures. Nor is it aimed at the reconciliation of aboriginal societies with the rest of Canadian society, since sports fishing, without evidence of a meaningful economic dimension, is not "of such overwhelming importance to Canadian society as a whole" (Gladstone, at para. 74) to warrant the limitation of aboriginal rights.
1094 Because Aboriginal title confers the right to the land itself: Delgamuukw (S.C.C.), at para. 138, British Columbia's forestry activities infringe Tsilhqot'in Aboriginal title as I have described in the preceding section.
1095 British Columbia argues, largely from a policy perspective, that there are good reasons for land use and forestry rules in the Claim Area. I believe this oversimplifies the test I must consider and apply.
1096 The question is not whether there is any merit in a provincial regulatory and administrative regime relating to forestry activities on Aboriginal title lands. There may well be merit in the existence of such a scheme. The inquiry here must focus on the application of that scheme to the circumstances of this case. Is there a compelling and substantial objective that justifies the infringements caused by British Columbia's land use planning and forestry activities on Tsilhqot'in title lands?
1097 Dr. Hamish Kimmins, a professional forester and expert in forest ecology, was called as a witness for British Columbia. The opinions he expressed were candid and of considerable assistance to the court. Dr. Kimmins testified that forests can be managed to address a wide range of options. They can be managed to protect a particular species of wildlife or to maximize the production of wood fibre. He confirmed that if one was aware of the cultural and economic objectives of a particular First Nation, a forest could be managed so as to afford that First Nation the opportunity to carry on trapping in a culturally and economically sustainable manner.
1098 As Dr. Kimmins explained, taken individually, each approach to forestry management constitutes single value management. He expressed the following opinions:
- a)
- b)
- c)
1099 A legislative scheme that manages solely for timber, with all other values as a constraint on that objective, faces a formidable challenge when called upon to balance Aboriginal rights with the economic interests of the larger society.
1100 For many years now, Tsilhqot'in people have opposed clear cutting in the Claim Area. They have argued for a form of ecosystem management that can sustain the region for generations to come. Their proposals have not been accepted because, as Dr. Kimmins observed, the current legislative system in British Columbia does not allow for ecosystem management.
1101 British Columbia appears to argue that the compelling and substantial objectives behind the alleged infringements include the economic benefits that can be realized from logging in the Claim Area, and a need to salvage forests affected by mountain pine beetle for sound silviculture reasons.
1102 Mountain pine beetle is currently destroying the pine forests of British Columbia, including those pine forests located in the Claim Area. Fire suppression activities are one reason offered for the advance of this forest infestation. Another reason is climate change. The absence of a sustained cold period during the winter means the beetle is able to survive into another year. However, it must be acknowledged that trees affected by mountain pine beetle play an important ecosystem function, providing valuable wildlife habitat that is consistent with the plaintiff's interests.
1103 What is clear from the evidence of Dr. Kimmins is that "sustainability is multi-faceted, involving a complex of physical, biological, social, economic, institutional and cultural dimensions: Kimmins report at p. 41. Given the findings of Tsilhqot'in Aboriginal rights resulting from these proceedings, there will be a need for British Columbia to develop a new model of sustainability in the Claim Area. The burden is on British Columbia to prove that any future harvesting of timber will not infringe Tsilhqot'in Aboriginal rights. That burden will require close consultation with Tsilhqot'in people, taking into account all of the factors that bear on their Aboriginal rights, as well as the interests of the broader British Columbia community.
1104 In an appendix to his report, Dr. Kimmins answered specific questions related to the mountain pine beetle infestation. He expressed the view that from the perspective of forest health, harvesting of lodgepole pine in the Claim Area was not necessary given the unprecedented nature of the mountain pine beetle epidemic and the climatic conditions of the past decade. If there was to be a harvesting of such timber, then, in the view of Dr. Kimmins, clear-cut harvesting would be appropriate so long as there were patches of dead trees of various sizes retained that would be consistent with the habitat need of the animal species of concern. I take it that in such an approach there would be specific consideration given to the well-being and continuity of the animals that are of particular concern to Tsilhqot'in people.
1105 Dr. Kimmins advised that conventional harvesting techniques could be carried out in a sustainable manner. However, this is dependant "on the values one is considering, and the time and spatial scale over which one is considering it": Kimmins report, p. 40.
1106 It is not possible to predict the future in this changing environment. The need to protect Tsilhqot'in Aboriginal rights throughout the Claim Area brings with it the need for a fresh approach to sustainability. This challenge can be met through the development of cooperative joint planning mechanisms taking into account the needs that must be addressed on behalf of the Tsilhqot'in community and the broader British Columbia and Canadian communities.
1107 I conclude that British Columbia has failed to establish that it has a compelling and substantial legislative objective for forestry activities in the Claim Area for two reasons. First, as was the case with sports fishing in Adams, there is no evidence that logging in the Claim Area is economically viable. The Claim Area has been excluded from the timber harvesting land base for an extended period of time. Even the Chief Forester acknowledged its more recent inclusion was questionable. The impact of forestry activities on the plaintiff's Aboriginal title is disproportionate to the economic benefits that would accrue to British Columbia or Canadian society generally.
1108 Second, I conclude there is no compelling evidence that it is or was necessary to log the Claim Area to deter the spread of the 1980's mountain pine beetle infestation. Rather, the evidence shows that none of the proposed harvesting is directed at stopping or limiting the mountain pine beetle outbreak.
c. Honour of the Crown
1109 Whether a particular infringement is consistent with the fiduciary relationship between the Tsilhqot'in people and the Crown will be a function of the "legal and factual context" of each case: Gladstone, at para. 56, cited in Delgamuukw (S.C.C) at para. 162. Three aspects of Aboriginal title are relevant when assessing whether or not the Crown's duty has been discharged in any given instance: the right to exclusive use and occupation of land; the right to choose to what uses the land will be put; and, the inescapable economic component": Delgamuukw (S.C.C.), para. 166.
1110 Government is required to demonstrate "'both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest' of the holders of aboriginal title in the land": Delgamuukw (S.C.C.) at para. 167, citing Gladstone, at para. 62. British Columbia must demonstrate that it gave adequate priority to Tsilhqot'in Aboriginal title and rights.
1111 In Sparrow and Gladstone, the application of this branch of the justification test meant that Aboriginal people received priority in the exploitation of the fishery resource. The Court indicated that the demands of the fiduciary relationship can manifest themselves in many other guises, including the duty of consultation, and ordinarily including a duty of fair compensation in all cases where title is being infringed.
1112 As suggested in Delgamuukw, (S.C.C.) at para. 167, the Crown has a duty to accommodate the participation of Tsilhqot'in people in developing the resources on their title lands. The conferral of fee simple lands for agriculture, and of leases and licences for forestry and mining must reflect the prior occupation of Aboriginal title lands. Economic barriers to Aboriginal uses of their lands, such as licensing fees, may be reduced. The Court explained that this is not an exhaustive list. There must also be an assessment of the various interests at stake in the resources in question.
1113 British Columbia must also demonstrate that "there has been as little infringement as possible in order to effect the desired result": Sparrow, p. 1119. Rather than observing this minimal requirement obligation, British Columbia does not appear to have considered in advance how its land use planning activities and proposed forestry activities might result in an infringement on Tsilhqot'in Aboriginal title and rights. Examples of these planning activities include:
- a)
- b)
- c)
- d)
d. Duty to Consult
1114 Where Aboriginal title exists or is alleged to exist, there is always a duty of consultation. As explained in Delgamuukw, (S.C.C.) at para. 168, the nature and scope of the duty of consultation will vary with the circumstances:
- In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.
- The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown": Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31.
- The honour of the Crown gives rise to different duties in different circumstances. Where the Crown has assumed discretionary control over specific Aboriginal interests, the honour of the Crown gives rise to a fiduciary duty: Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, 2002 SCC 79, at para. 79. The content of the fiduciary duty may vary to take into account the Crown's other, broader obligations. However, the duty's fulfilment requires that the Crown act with reference to the Aboriginal group's best interest in exercising discretionary control over the specific Aboriginal interest at stake. As explained in Wewaykum, at para. 81, the term "fiduciary duty" does not connote a universal trust relationship encompassing all aspects of the relationship between the Crown and Aboriginal peoples:
- ... "fiduciary duty" as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship ... overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests.
- Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.
- Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?
- The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution. But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.
- To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic goal, devoid of the "meaningful content" mandated by the "solemn commitment" made by the Crown in recognizing and affirming Aboriginal rights and title: Sparrow, supra, at p. 1108. It also risks unfortunate consequences. When the distant goal of proof is finally reached, the Aboriginal peoples may find their land and resources changed and denuded. This is not reconciliation. Nor is it honourable.
1122 The Court then considered the scope and content of the duty to consult, noting in para. 41 that "it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified." The Court presented "the concept of a spectrum", stating at paras. 43-45:
- At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.
- At the other end of the spectrum lies cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.
- Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.
1123 To assist the Court in the consideration of the evidence, British Columbia summarized the evidence in a booklet entitled, "Chronologies, including consultation chronologies, dating from February 10, 1982 up to December 5, 2005". The consultation chronology consists of 193 pages. There is no doubt that considerable effort has been made to engage Tsilhqot'in people in the forestry proposals and the land use planning in the Claim Area. The central question is whether all of this effort amounts to genuine consultation.
1124 British Columbia argues that it has met its consultation duties respecting the CCLUP and other land use planning processes, but that the plaintiff has not responded in good faith. The plaintiff disagrees and argues that in the CCLUP and other land use planning processes, British Columbia has failed to reconcile its sovereignty with the Tsilhqot'in people's claims of Aboriginal title and rights.
1125 It is informative to consider the setting of the AAC under the provisions of the Forest Act. This task is assigned to the Chief Forester. The legislation is silent with respect to Aboriginal title and rights. The Chief Forester interpreted this silence as a direction to him to ignore any actual or claimed Aboriginal title or rights when determining the AAC. The AAC is based on the assumption that all areas contribute to the timber supply within the TSA until the issue of Aboriginal title is finally resolved.
1126 In 1992 the Premier of British Columbia, Premier Michael Harcourt, gave his undertaking to the Tsilhqot'in chiefs that no harvesting would occur in the Brittany Triangle without the consent of the Xeni Gwet'in.
1127 The Chief Forester was aware of this commitment when he made the 1996 AAC determination. Despite this knowledge, the Chief Forester considered it to be his statutory duty to fully incorporate the Claim Area into the timber harvesting land base and to ignore the potential for Tsilhqot'in Aboriginal title. The 1996 AAC was dependant on timber from that area. Notwithstanding that this decision clearly and specifically related to the future use and exploitation of lands in the Claim Area, Tsilhqot'in Aboriginal title is not mentioned as a relevant factor in the 1996 AAC rationale.
1128 The former Chief Forester testified that he did not (and believed he could not) adjust his AAC determination on the basis of a claim to Aboriginal rights and title. But the claims of the Tsilhqot'in people to Aboriginal rights and title imposed upon him a duty to consult. His failure to consult is not an infringement of Tsilhqot'in Aboriginal rights, including title. But what it means is that the Province is unable to justify their actual infringements of Aboriginal title and rights that might flow from the decision. This failure to consult might result in a later claim for damages dependant on the consequences of the decision that was made.
1129 British Columbia says that while strategic planning decisions may have serious impacts on Aboriginal title, all that such decisions trigger is a duty to consult. There can be no infringement until there is an authorization by the Crown for the removal of timber. Until that occurs, there is no direct infringement, only the potential for infringement.
1130 In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 when discussing the duty to consult, the Court said at paras. 75-76:
- The next question is when does the duty to consult arise? Does it arise at the stage of granting a Tree Farm Licence, or only at the stage of granting cutting permits? The T.F.L. replacement does not itself authorize timber harvesting, which occurs only pursuant to cutting permits. T.F.L. replacements occur periodically, and a particular T.F.L. replacement decision may not result in the substance of the asserted right being destroyed. The Province argues that, although it did not consult the Haida prior to replacing the T.F.L., it "has consulted, and continues to consult with the Haida prior to authorizing any cutting permits or other operational plans" (Crown's factum, at para. 64).
- I conclude that the Province has a duty to consult and perhaps accommodate on T.F.L. decisions. The T.F.L. decision reflects the strategic planning for utilization of the resource. Decisions made during strategic planning may have potentially serious impacts on Aboriginal right and title. The holder of T.F.L. 39 must submit a management plan to the Chief Forester every five years, to include inventories of the licence area's resources, a timber supply analysis, and a "20-Year Plan" setting out a hypothetical sequence of cutblocks. The inventories and the timber supply analysis form the basis of the determination of the allowable annual cut ("A.A.C.") for the licence. The licensee thus develops the technical information based upon which the A.A.C. is calculated. Consultation at the operational level thus has little effect on the quantity of the annual allowable cut, which in turn determines cutting permit terms. If consultation is to be meaningful, it must take place at the stage of granting or renewing Tree Farm Licences. [Emphasis added.]
1132 The 1992 Tsuniah Lake Local Resource Use Plan and the 1993 draft Brittany Lake Forest Management Plan demonstrate the Province's determination to open up the Claim Area for logging. This objective was confirmed by the terms of the Cariboo-Chilcotin Land Use Plan established in 1994, and the related planning processes. The CCLUP is an expression of the highest level of provincial land use planning. The portions enacted by Cabinet as a higher level plan have the force of law and establish a process for all lower level decisions. These include timber targets for harvesting that direct a substantial level of commercial harvesting in the Claim Area in order to meet the targets mandated by the Plan.
1133 I do not propose to review these land use plans in detail. It is sufficient to note that none of the three plans took into account any Aboriginal title or Aboriginal rights that might exist in the Claim Area.
1134 The Province's express purpose in establishing the CCLUP was "resolving uncertainty" and dedicating "resource lands for industry and jobs". In its October 1994 explanation of the CCLUP, the Province said, in part:
- The provincial government recognizes the need to ensure that all Cariboo residents and business interests have certainty of access to the natural resources they depend on to make a living, while ensuring recognition of special values. Secure access to these resources will provide economic and social stability, plus increase opportunities for sustainable growth and investment throughout the region.
1136 Over the years, British Columbia has either denied the existence of Aboriginal title and rights or established policy that Aboriginal title and rights could only be addressed or considered at treaty negotiations. At all material times, British Columbia has refused to acknowledge title and rights during the process of consultation. Consequently, the pleas of the Tsilhqot'in people have been ignored.
1137 Consultation involves communication. It has often been said that communication is the art of sending and receiving. Provincial policies either deny Tsilhqot'in title and rights or steer the resolution of such title into a treaty process that is unacceptable to the plaintiff. This has meant that at every stage of land use planning, there were no attempts made to address or accommodate Aboriginal title claims of the Tsilhqot'in people, even though some of the provincial officials considered those claims to be well founded. A statement to the effect that a decision is made "without prejudice" to Aboriginal title and rights does not demonstrate that title and rights have been taken into account, acknowledged or accommodated.
1138 Tsilhqot'in people also appeared from time to time to have a fixed agenda, namely the promotion of an acknowledgment of their rights and title. It must be borne in mind that it is a significant challenge for Aboriginal groups called upon in the consultation process to provide their perspectives to government representatives. There is a constant need for adequate resources to complete the research required to respond to requests for consultation. Even with adequate resources, there are times when the number and frequency of requests simply cannot be answered in a timely or adequate fashion.
1139 Consultations with officials from the Ministry of Forests ultimately failed to reach any compromise. This was due largely to the fact that there was no accommodation for the forest management proposals made by Xeni Gwet'in people on behalf of Tsilhqot'in people. Forestry proposals that concerned timber assets in the Claim Area were usually addressed by representatives of Xeni Gwet'in people. But, from the perspective of forestry officials, there was simply no room to take into account the claims of Tsilhqot'in title and rights.
1140 Conversely, there was good communication between Tsilhqot'in people with officials in the Ministry of Lands, Parks and Housing. Here the two groups were able to reach a consensus on the establishment and management of Ts'il?os Provincial Park, without prejudice to the rights and title claims of Xeni Gwet'in and Tsilhqot'in people in the park area. The joint management model of this Provincial Park has been such a success that it has been extended to the management of Nuntzi Provincial Park in the northeastern portion of Tachelach'ed.
1141 Utilizing the concept of a spectrum proposed in Haida Nation (S.C.C.), I place the rights and title claimed here at the high end of the scale, requiring deep consultation and accommodation. I have already noted there are areas of title inside and outside of the Claim Area. Aboriginal rights in the Claim Area have been acknowledged by the defendants in these proceedings. I have found the plaintiff is entitled to a finding of specific Aboriginal rights on behalf of all Tsilhqot'in people. On the whole of the evidence, and in particular with respect to forestry and land use planning throughout the Claim Area, the failure of the Province to recognize and accommodate the claims being advanced for Aboriginal title and rights leads me to conclude that the Province has failed in its obligation to consult with the Tsilhqot'in people. For these reasons, and for the reasons earlier expressed, the Province has failed to justify its infringement of Tsilhqot'in Aboriginal title. ”
Aboriginal Treaties:
_______________________________R v Marshall [1999] ___________________________
Facts: The accused, a Nova Scotia man by the name of Donald Marshall, admitted the offences. Mr. Marshall admitted that he caught and sold 463 pounds of eel without a licence and with a prohibited net within closed times. However Mr. Marshall argued that he should not be found guilty of the charges that were against him because as a Mi'kmaq Indian, he possessed the Treaty right to catch and sell fish pursuant to treaties that had been signed between the British and the Mi'kmaq in 1760-61.
*R v Marshall [1999]
o There is a difference between DEFINING the treaty right and REGULATING the treaty right
“Only those laws that would take the aboriginal catch BELOW the qualities reasonably expected to produce a moderate livelihood, should be REGULATING the treaty right...and those laws would need to satisfy the Sparrow Test of Justification...”
o WHEN DEFINING A TREATY RIGHT, IT DOES NOT NEED TO SATESFY THE SPARROW TEST
NOTE: R v Marshall and R v Bernard ARE TOGETHER!
_____________________________R v Bernard [2005] _____________________________
Facts:
The respondents Marshall and Bernard are Mi'kmaq Indians living in Nova Scotia and New Brunswick respectively. Marshall and 34 others were charged with cutting timber on Crown lands in Nova Scotia without authorization contrary to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114. In New Brunswick, Bernard was charged with unlawful possession of 23 spruce logs he was hauling from the cutting site to the sawmill in contravention of s. 67(1)(c) of the Crown Lands and Forest Act, S.N.B. 1980, c. C-38.1. Both accused admitted all elements of the offence, except lack of authorization. Both were convicted at trial (R. v. Marshall, [2001] 2 C.N.L.R. 256; R. v. Bernard, [2000] 3 C.N.L.R. 184) and the convictions were upheld by the summary appeal court (R. v. Marshall, [2002] 3 C.N.L.R. 176; R. v. Bernard, [2002] 3 C.N.L.R. 114). The Courts of Appeal reversed the convictions: a new trial was ordered in Marshall ([2004] 1 C.N.L.R. 211), and an acquittal was entered in Bernard ([2003] 4 C.N.L.R. 48). At issue was whether the Mi'kmaq peoples in Nova Scotia and New Brunswick have the right to log on Crown lands for commercial purposes pursuant to treaty rights or Aboriginal title.
HELD: Appeals allowed
McLachlin C.J. –
· 1.
There is no ground for an appeal court to interfere with the branch of the case concerning the Aboriginal treaty right. The trial judges applied the right test and asked themselves the right questions. The evidence supports the trial judges' conclusions that the commercial logging that formed the basis of the charges against the respondents was not the logical evolution of traditional Mi'kmaq trading activity protected by the treaties of 1760-1761.
· 2.
The purpose of the truckhouse clause of the treaty, its wording and the holdings in R. v. Marshall 1, [1999] 4 C.N.L.R. 161 (S.C.C.) and R. v. Marshall 2, [1999] 4 C.N.L.R. 301 (S.C.C.) all lead to the conclusion that commercial logging is not within the scope of rights protected by treaty. The truckhouse clause was a trade clause, concerned with traditionally traded products. It implicitly granted the right to harvest resources, but the right to harvest is an adjunct of the right to trade in traditional products. The treaty protects the right to practice a traditional 1760 trading activity in the modern way and in a modern context, but nothing in the words of the treaty comports a general right to harvest or gather all natural resources then used. The inquiry focuses not on what resources were used in 1760, as asserted by the respondents, but what trading activities were in the contemplation of the parties at the time of the treaty. Only those trading activities are protected. Ancestral trading activities are not frozen in time and can evolve logically from traditional trading activities. The question is whether the modern trading activity represents a logical evolution. New and different trading activities, like commercial logging, are not protected.
· 3.
It is unnecessary to discuss the scope of "moderate livelihood" and the issues of cultural attributes and community authority, nor is it necessary to consider other treaty-related issues.
· 4.
Concerning the first of three grounds advanced by the respondents for their claim to Aboriginal title, common law Aboriginal title, there is no ground to interfere with the trial judges' conclusions that the respondents do not hold common law Aboriginal title to the land. The Nova Scotia Court of Appeal did not criticize the trial judge's findings of fact in Marshall, and although the New Brunswick Court of Appeal found fault with the findings of the trial judge in Bernard, any error was inconsequential. Even if the trial judge overlooked certain facts, they do not support a finding of Aboriginal title. Nor did the trial judges err in their assessment of the evidence or the application of the law to the evidence. Each trial judge required proof of sufficiently regular and exclusive use of the cutting sites to establish Aboriginal title, which was the correct and appropriate standard.
· 5.
Two central concepts inform the determination of Aboriginal rights: (1) both Aboriginal and European common law perspectives must be considered; and (2) a variety of Aboriginal rights may be affirmed.
· 6.
An Aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land continues to enjoy title to it, unless extinguished by clear legislative act prior to 1982. Aboriginal title to land is established by Aboriginal practices that indicate possession similar to that associated with title at common law. Specifically, documents must prove "exclusive" pre-sovereignty "occupation" of the land by their forebears. "Occupation" means "physical occupation". "Exclusive" occupation means "the intention and capacity to retain exclusive control" and is not negated by occasional acts of trespass or the presence of other Aboriginal groups with consent. There is a distinction between the requirements for a finding of Aboriginal title and the requirements for more restricted rights, such as hunting and fishing rights.
· 7.
Exclusive control is basic to the notion of title at common law. To say that title flows from occasional entry and use is inconsistent with the Court's approach maintained in cases such as R. v. Côté, [1996] 4 C.N.L.R. 26 (S.C.C.), R. v. Adams, [1996] 4 C.N.L.R. 1 (S.C.C.), and Delgamuukw v. British Columbia, [1998] 1 C.N.L.R. 14 (S.C.C.). Aboriginal societies were not strangers to the notions of exclusive physical possession equivalent to common law notions of title, as they often exercised such control over their village sites and other areas of land. Determining whether exclusion is present in pre-sovereignty Aboriginal society requires that one look to the evidence, despite the difficulty inherent in doing so. It is critical to view the question of exclusion from the Aboriginal perspective. While evidence of acts of exclusion is not required to establish Aboriginal title, demonstration of effective control of the land by the group is necessary, from which a reasonable inference can be drawn that it could have excluded others had it chosen to do so.
· 8.
Whether semi-nomadic or nomadic peoples can ever claim title to land will depend on the evidence. The question is whether a degree of physical occupation or use equivalent to common law title has been made out.
· 9.
Claimants asserting common law Aboriginal title or a more restricted Aboriginal right must establish a connection with the pre-sovereignty group. They must also show that the right is a descendant of pre-sovereignty Aboriginal practices. To claim title, the group's connection with the land must be shown to have been "of a central significance to their distinctive culture".
· 10.
Underlying all these issues is the need for a sensitive and generous approach to the evidence tendered to establish Aboriginal rights. Oral history evidence is permitted, provided it meets the required standards of usefulness and reasonable reliability. Evidence must be evaluated from the Aboriginal perspective. The ultimate goal is to translate the pre-sovereignty Aboriginal right to a modern common law right. This must be approached with sensitivity to the Aboriginal perspective as well as fidelity to the common law concepts involved.
· 11.
It is unnecessary to consider extinguishment, infringement, justification and continuity issues.
· 12.
The second ground advanced by the respondents for their claim to Aboriginal title was that the Royal Proclamation of 1763 gave them Aboriginal title to all unceded, unpurchased land in the former colony of Nova Scotia. In accordance with principles of interpretation set out in Nowegijick v. The Queen, [1983] 2 C.N.L.R. 89 (S.C.C.) and the recognition that the Royal Proclamation is the "Magna Carta" of Indian rights in North America (R. v. Secretary of State for Foreign and Commonwealth Affairs, [1981] 4 C.N.L.R. 86 (Engl. C.A.)), it must be interpreted liberally and doubts resolved in favour of Aboriginal peoples. As contemporaries considered that the Royal Proclamation applied to Nova Scotia, the Court proceeded on the basis that it did.
· 13.
An examination of the text of the Royal Proclamation does not support the proposition that it granted title to the Mi'kmaq. When the Royal Proclamation directed the reservation or annexation of land, it used terms of grant and referred to the specific tracts of land. The words of the preamble pointed to as granting Aboriginal title do not accord new rights. A second phrase allegedly reserving to the Mi'kmaq all unceded or unpurchased land in the Nova Scotia colony did not use the direct and clear language used elsewhere to reserve lands to the Indians, and thus does not create new rights in land either, merely repeating the wording from the preamble. Subsequent provisions requiring settlers to leave lands reserved to the Indians reinforce this view, because otherwise these provisions would have had the effect of ejecting all the settlers from the colony. In fact, the opposite occurred, extensive settlement took place shortly after the Royal Proclamation. The language of a third phrase is equally consistent with referring to newly reserved lands as it is to previously reserved lands.
· 14.
Both jurisprudence (R. v. Sioui, [1990] 3 C.N.L.R. 127 (S.C.C.)) and historic policy support the Crown's argument that the Royal Proclamation did not grant Nova Scotia to the Indians. From the beginning of discussions about the Royal Proclamation, the imperial territories were divided into lands to be settled and lands where settlement would be deferred. The purpose of the Royal Proclamation was to minimize potential conflict between settlers and Indians. Reserving Nova Scotia to the Indians would completely counter the planned settlement of Nova Scotia.
· 15.
The third ground advanced by the respondents for Aboriginal title was Governor Belcher's Proclamation. A Royal Instruction of December 9, 1761 forbidding the granting of lands adjacent to or occupied by the Indians prompted Governor Belcher to issue his Proclamation in 1762. It directed settlers to remove themselves from lands "reserved to or claimed by" the Indians. The trial judge in Bernard found however that Belcher's Proclamation granted only a "common right to the Sea Coast", and was limited to "hunting, fowling and fishing", not logging. Moreover, the authority of Belcher's Proclamation is suspect and His Majesty's disallowance was made clear by letter of March 20, 1764.
per LeBel J. –
· 1.
Concerning the treaty right, it comprises both a right to trade and a right of access to resources. The question is what this implies in a modern setting. The modern activity must bear some relation to the traditional use of forest products in the Mi'kmaq economy. Only those types of resources traditionally gathered in the Mi'kmaq economy would reasonably have been in the contemplation of the parties to the treaties. In order to be protected under the treaties of 1760-1761, trade in forest products must be the modern equivalent or a logical evolution of Mi'kmaq use of forest products at the time the treaties were signed. The conclusion that trade in forest products was not in the contemplation of the parties in 1760 is consistent with the evidence adduced at trial. The parties did not contemplate access to forest resources for purposes other than trade in traditional products, such as bows, arrows, etc., and commercial logging is not the logical evolution of traditional trading activity. It represents a fundamentally different use from that which would have been in the contemplation of the parties.
· 2.
Concerning Aboriginal title, the record in the Court below lacks the evidentiary foundation necessary to make legal findings on this issue in respect of the cutting sites in Nova Scotia and New Brunswick. Consequently, the respondents in these cases have failed to sufficiently establish their title claim.
· 3.
Given the nature of Aboriginal peoples' historical use of land, the test for Aboriginal title set out in the majority judgment is too narrowly focussed on common law concepts relating to property interests. Aboriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy standard that incorporates both the Aboriginal and common law approaches.
· 4.
While it is very difficult to introduce Aboriginal conceptions of property and ownership into the modern property law concepts of the civil law and common law, this Court has on many occasions noted the sui generis nature of Aboriginal title. Aboriginal title arises from the prior possession of land and the prior social organization and distinctive cultures of Aboriginal peoples on that land. Aboriginal title must be understood with reference to both common law and Aboriginal perspectives, and they must be given equal consideration.
· 5.
The role of the Aboriginal perspective is not simply to help in the interpretation of Aboriginal practices in order to assess whether they conform to common law concepts of Aboriginal title. Aboriginal title cannot be framed exclusively by reference to common law concepts. The patterns of Aboriginal occupation of land should inform the standard necessary to prove Aboriginal title. Nomadic peoples and their modes of occupation of land cannot be ignored when defining the concept of Aboriginal title to land in Canada. The common law notion that "physical occupation is proof of possession" remains, but the nature of the occupation is shaped by the Aboriginal perspective, which includes a history of nomadic or semi-nomadic modes of occupation.
· 6.
The nature and patterns of land use that are capable of giving rise to a claim for title are not uniform and are potentially as diverse as the Aboriginal peoples that possessed the land prior to the assertion of Crown sovereignty. Taking into account the Aboriginal perspective on the occupation of land means that physical occupation as understood by the modern common law is not the governing criterion. The group's relationship with the land is paramount. To impose rigid concepts and criteria is to ignore Aboriginal social and cultural practices that may reflect the significance of the land to the group seeking title. The mere fact that the group travelled within its territory and did not cultivate the land should not take away from its title claim.
· 7.
The standard of proof must reflect the patterns of occupation of the land prior to the assertion of British sovereignty. Pre-sovereignty patterns of use are highly relevant to the issue of occupation.
· 8.
In the context of Aboriginal title claims, the physical fact of sedentary and continuous occupation is only one of the sources of title. Occupancy must be determined by reference to activities that have taken place on the land and the uses to which the land has been put by the particular group. Occupancy cannot be equated to the common law notion of possession amounting to a fee simple. Proof of Aboriginal title relates to the manner in which the Aboriginal group used and occupied the land prior to the assertion of Crown sovereignty.
· 9.
The Aboriginal perspective on the occupation of their land can be gleaned in part from pre-sovereignty systems of Aboriginal law. The relevant laws consisted of the elements of the practices, customs and traditions of Aboriginal peoples and might include a land tenure system or laws governing land use.
· 10.
In considering the degree of occupation sufficient to establish title, one must be mindful that Aboriginal title is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the Aboriginal group's culture. Occupation should therefore be proved by evidence not of regular and intensive use of the land but of the traditions and culture of the group that connect it with the land. Thus intensity of use is related not only to common law notions of possession but also to the Aboriginal perspective.
· 11.
It is inappropriate to litigate Aboriginal rights issues in the context of summary conviction proceedings, as the issues have little to do with the criminality of the accused's conduct. The criminal process is inadequate for dealing with such complex, important claims, which are properly the subject of a civil action for a declaration. Procedural and evidentiary difficulties and the impact of the claims on third parties who have a right to be heard, among other difficulties, illustrate that summary conviction proceedings are not conducive to adjudicating fairly on such claims. When issues of Aboriginal title or other Aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to seek a stay so that the Aboriginal claim can be litigated in the civil courts.
R. v. Marshall; R. v. Bernard 2005 SCC 43 is a leading Aboriginal rights decision of the Supreme Court of Canada where the Court narrowed the test from R. v. Marshall for determining the extent of constitutional protection upon aboriginal practices. The Court held that there was no right to commercial logging granted in the "Peace and Friendship treaties of 1760", the same set of treaties were the right to commercial fishing was granted in the R. v. Marshall decision.
This decision considers two separate cases. In the first one, Stephen Marshall (no relation to Donald Marshall) and 34 other Mi'kmaqs were charged with cutting down timber on Nova Scotia Crown land without a permit. In the second case, Joshua Bernard, a Mi'kmaq was charged with possession of logs stolen from a rural New Brunswick saw mill that was cut from Crown lands.
In both cases all of those accused argued that their status as Indian gave them the right to log on Crown land for commercial purposes as granted by the treaties of Peace and Friendship.
At trial, the judges convicted all of those accused. At the provincial courts of appeal, the convictions were overturned.
Opinion of the court McLachlin, writing for the majority, held that there was no right to logging under the treaties. From the evidence she found that it did not support the conclusion that logging formed the basis of the Mi'kmaq's traditional culture and identity. The majority restored the convictions at trial.