Constitution Cases

R v. Sparrow

Sappier; R v. Gray

R v. Lax Kwa’alaams......

R v. Van der Peet......

R v. Gladstone:

R v. Powley......

R v. Pamajewon, Cambell, Mitchell

Haida Nation v. British Columbia Minister of Forests [2004]......

Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council [2010]......

Beckman v. Little Salmon/Carmacks First Nation [2010]

Vriend v. Alberta [1998]......

Ford v. Quebec (Attorney General) [1988]......

Dolphin Delivery [1986]

Mckinney v. University of Guelph [1990]......

Godbout v. Longueuil [1997]......

Eldridge [1997]

Hill v. Church of Scientology......

Schacter v. Canada [1992]......

R v. Big M Drug Mart Ltd. [1985]

R v. Butler [1992]......

R v. Oakes [1986]

Irwin Toy......

M v. H [1999]

Choudhry – What is the Real Legacy of the Oakes test......

R v. Edwards Books......

Hutterian Brethren

Andrews [1989]......

Law (1999)

Kapp......

R v.Withler......

Auton

Sheppard (Discrimination)......

Keegstra

Montreal v. 2952-1366 Quebec......

Haig......

NWAC v. Canada [1994]

Baier v. Alberta [2007]......

Reference re Section 94(2) of the Motor Vehicle Act (BC) [1985]......

Morgentaler

Rodriqguez [1993]

Gosselin v. Quebec (Attorney General)......

Chaoulli v. Quebec Attorney General [2005]

R v. Sparrow

Facts: Sparrow caught fishing with a net longer than permitted by the food fishing licence and in violation of the Fisheries Act. Sparrow argues he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band’s licence is inconsistent with s.35(1) of the Constitution Act and invalid.

Issue:

  • What is meant by “recognized and affirmed” by section 35?
  • Are the net lengths restrictions invalid if an aboriginal right to fish is established? YES
  • Did the Fisheries Act extinguish the Musqueam Band’s aboriginal right to fish? NO

Reasoning:

  • Existing makes it clear that the rights to which s.35 applies are ones that existed when the Constitution Act came into effect
  • Rights are not revived by the constitution Act
  • Existing mean unextinguished rather than exercisable at a certain time in history
  • Existing aboriginal rights cannot be read so as to incorporate the specific manner in which it was regulated before 1982
  • Evidence of the salmon fishing and the use of salmon is slightly scarce from 1867-1961 but established and not at issue
  • Test of extinguishment is that the Crown’s intention must be clear and plain to extinguish an aboriginal right
  • Nothing in Fisheries act demonstrate the plain and clear intention
  • Not arguing right to fish commercially, but to affirm existing right to fish for food and ceremonial purposes
  • S.35 to be interpreted in a generous and liberally
  • Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples
  • Government and aboriginal relation ship is “trust” like, not adversarial
  • Contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship
  • Legislation that affects exercise of aboriginal rights will be valid if it meets the test of justifying an interference with a recognized right under 35(1)
  • Rights that are recognized and affirmed are not absolute
  • Federal power regarding rights to legislative with respect to Indians must now be read together with s.35(1) in order to reconcile federal power with federal duty
  • Best way to achieve reconciliation it to demand the justification of any government regulation that infringes upon or denies aboriginal rights (Honour of the Crown)
  • Regulation affecting section 35(1) must be enacted according to a valid objective
  • Government is required to bear the burden if justifying any legislation that has some negative effect on any aboriginal right protected under s. 35
  • Test for Prima Facie aboriginal right interference
  • 1) Whether the legislation in question has the effect of interfering with an existing aboriginal right
  • YES? Prima Facie infringement
  • 2) Is the limitation unreasonable?
  • 3) Does the regulation impose undue hardship?
  • 4) Does the regulation deny to the holders of the right to preferred means of exercising that right?
  • Onus on the person challenging that right
  • Conservation and management of resources is consistent with aboriginal beliefs and practices and enhancement of aboriginal rights
  • Must be a direct link between the question of justification and allocation of priorities in the fishery
  • Constitutional entitlement is second only to conversation measures that may be undertaken by federal legislation

Sappier; R v. Gray

Issue: Whether the Maliseet and Mi’kmaq peoples in NB have an aboriginal right to harvest timber on Crown land for personal use?

Ratio:

  • An aboriginal right cannot be characterized as right to a particular resource because to do so would be to treat is as akin to a common law property right
  • Attention paid to significance of the resource to the community in question
  • Essential that the Court be abled to identify the PRACTICE that helps to define the distinctive way of life of the community as an aboriginal community
  • Evidence of pre contact practice important, without it, courts find it hard to relate the claimed right to the pre-contact way for life of the specific aboriginal people as to trigger s.35 protection
  • Culture:
  • An inquiry into the pre contact way of life of a particular aboriginal community including their means of survival, socialization methods and their legal systems and potentially their trading habits
  • Distinctive
  • Meant to incorporate an element of aboriginal specificity
  • Does not mean distinct; aboriginality shouldn’t be reduced to racialized stereotypes of aboriginal peoples

R v. Lax Kwa’alaams

Facts: Claim an aboriginal right to commercial harvesting and sale of all species of fish and claim preferential access to the commercial fishery based on an express or implied promise in the granting of fishing station reserves at the time reserves were allotted in the 1800s engaging a fiduciary obligation and the honour of the crown

Reasoning:

  • Van der Peet slightly clarified regarding scope of the judges discretion to re-characterize the right
  • Court narrowed the claim to satisfy the forensic needs of the defence without risking the self destruction of the defence by reason of over claiming
  • Step 2 is see if the evidence establishes
  • The existence of the pre contact practice, tradition or custom advanced in the pleadings to support the claimed right
  • That this practice is integral to the distinctive pre-contact society (AKA Van der Peet)
  • Consider the continuity (does the claimed modern right have a reasonable degree of continuity with the integral pre-contact practice
  • Logical evolution
  • Subject matter is resource specific
  • If found  delineate with regard to the objectives which may justify infringement of aboriginal commercial rights in gladstone

Ratio:

  • Refines Van der Peet Test (four branches now)
  • Allowance for continuity of right

R v. VanderPeet

Facts: Appellant charged under 61.1 of the fisheries act for selling fish under the authority of an Indian food licences contrary to s.27(5) of the British Columbia Fishery (General Regulations). Appellant claims that the restrictions imposed by s.27(5) of the regulations infringe her existing aboriginal right to sell fish and are therefore invalid on the basis that they violate s.35 of the constitution act

Issue: How should aboriginal rights recognized and affirmed by s.35(1) of the Constitution Act, 1982 be defined.

Reasoning:

  • Majority endorsed a pre contact test for identifying which customs, practices or traditions were integral to a particular aboriginal culture and therefore entitled to constitutional protection
  • Metis question reserved for another day (metis are post contact)

Ratio:

  • Purpose of section 35
  • Substantive rights that fall within the provision must be directed towards the reconciliation of the pre-existence of aboriginal society’s with the sovereignty of the Crown
  • Van der Peet Test
  • 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 claiming the right
  • Look at 10 Factors to apply the test

R v. Gladstone:

Facts: Selling herring spawn on kelp commercially

Reasoning:

  • Differs from Sparrow
  • Sparrow was internally limited (at some point band has sufficient amount of items to meet need for social and ceremonial)
  • Commercial sale of erring spawn has NO internal limitation, only limits are the demand of the market and availability of the resource
  • Government must show that in allocating the resource, it has taken into account the existence of Aboriginal rights and allocated the resource in a manner respectful of the priority of those rights over the exploitation by other users
  • When the aboriginal right has no limitation, notion of priority would mean that where aboriginal right is recognized and affirmed that right would become exclusive because right to sell can never be satisfied while resource is still available and market is not sated.
  • Court should assess the governments actions to determine whether the government has taken into account the existence and importance of such rights, not whether they have given exclusivity to that right
  • Nature of Objectives that the Crown can Pursue other than conservation:
  • Limits placed on the rights where the objectives furthered by those limits are of sufficient importance to the broader community as a whole (Part of the reconciliation of aboriginal societies with the broader community)
  • Pursuit of economic and regional fairness (after conservation goals met)
  • Recognition of the historic reliance upon the fishery of non aboriginal groups (after conservation goals met)
  • These objectives are in the interest of all Canadians and of reconciliation)

R v. Powley

Facts: Powley and son charged with unlawfully hunting moose and possessing game in contravention of the Game and Fish Act. Pled not guilty because Metis had an aboriginal right to hunt for food in the area and the right couldn’t be infringed without justification.

Issue: Is there a pre-existing aboriginal right to hunt that was infringed?

Reasoning:

  • Difficulty because Metis people post date European contact (distinct from other aboriginal groups)
  • Purpose of s. 35 as it relates to the metis is different from which relates to the Indians or the Inuit
  • Inclusion of metis in s.35 represents Canada’s commitment to recognize and value the distinctive metis cultures which grew in areas not open to colonization.
  • Modify pre contact focus of the Van der Peet test to accommodate the differences
  • Test applied
  • 1) Right characterization
  • Hunting for food--< right to hunt for food in the environs of Sault Ste. Marie
  • Periodic scarcity of moose does not undermine this right
  • Relevant right is not to hunt for moose but to hunt for food in the territory
  • 2) Identification of Rights Bearing Community
  • Metis community emerged in the upper great lakes region mid 17th-C
  • Settlement was one of the oldest and most important in the area
  • Metis community can be defined as a group of metis with a distinctive collective identity living together in the same geographic area and sharing a common way of life
  • 3) Identification of the Contemporary rights bearing community
  • Community persisted in the rea despite decrease of visibility (on the evidence)
  • Lack of visibility explained (went underground not disappeared)
  • 4) Verification of the Claimant’s membership in the contemporary community
  • Three broad factors as indicia of metis identity for claiming rights as a metis under 35
  • Must self identify as a member of the metis community (not of a recent vintage)
  • Must present evidence of an ancestral connection to a historic metis community(no minimum blood quantum, but some proof ancestors belonged to historic metis community by birth, adoption or other means)
  • Must demonstrate that he/she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed
  • 5) Identification of the Relevant Time Frame
  • Focus should be on the period after a particular metis community arose and before it came under the control of European laws and customs (Pre Control test)
  • The community in question thrived largely unaffected by European laws and customs until colonial policy shifted to negotiating treaties and encouraging settlement in the middle 19th century
  • 6) Whether the Practice is integral to the claimant’s distinctive culture
  • Subsistence hunting and fishing was a constant in metis community despite the availability of a particular species fluctuating
  • 7) Continuity between historic practice and the contemporary right asserted
  • certain margin of flexibility might be required to ensure that aboriginal practices can evolve and develop over time but is not necessary to define or to rely on the margin in this case
  • Right claimed by Powley’s falls within this practice
  • 8) Determination of whether or not the right was extinguished
  • no evidence explicitly stating that
  • 9) If right Infringement?
  • Ontario doesn’t recognize metis right to hunt for food or any special access to resources for the metis
  • Lack of recognition and application of the challenged provisions to the Powley’s infringes the right
  • 10) Is infringement justified
  • Gov argues conservation
  • Record doesn’t support justification, no evidence of moose threat and even if it was metis would be allotted a priority to satisfy sustenance needs
  • Not justified

R v. Pamajewon, Cambell, Mitchell

Facts:Pamajewwn and co were convicted of keeping a common gaming house contrary to s. 201 of the criminal code. The gaming occurred on reserves are the participants were non natives. Band members argued that the activities in question were protected as an Aboriginal right as an incident of the inherent right of self government.

Issue: Whether the right to control high stakes gambling was protected under section 35(1) of the Constitution Act

Reasoning:

  • Lamar classified the right as the right to participate in and regulate gambling activities on their respective lands
  • Van der Peet right must have existed prior to contact and be an integral part of their distinctive culture
  • Ojibwa band gambled prior to contact but not on a large scale and not significant to be an integral part of the distinctive cultures of the bands
  • No right to high stakes gambling under the aboriginal power of self government

Ratio:

  • Van der Peet applies to claims for the rights of self government

Haida Nation v. British Columbia Minister of Forests [2004]

Facts:Haida nation challenged the provincial government’s unilateral replacement and transfer of tree farming licences over lands to which the Haida claimed an aboriginal title

Issue: Was the Crown’s obligation to consult engaged? YES

Reasoning:

  • Government’s duty to consult with the Aboriginal peoples and accommodate their interest is grounded in the honour of the crown
  • Honour of the crown requires that these s.35 rights be determined, recognized and respected which requires the crown acting honourably to participate in processes of negotiation.
  • Crown must respect potential yet unproven interests
  • 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.

Ratio:

  • Court established that the government has a duty to consult with aboriginal groups whenever government decision making could adversely affect and aboriginal right or aboriginal title and that duty extended to cases where claims of aboriginal rights or tittle had been asserted but not yet proven
  • Duty to consult arises when the Crown has knowledge, real, or constructive of the potential existence of the Aboriginal right or tittle and contemplates conduct that might adversely affect it.

Rio Tinto Alcan Inc v. Carrier Sekani Tribal Council [2010]

Facts: Sale of electricity by a power plant that supplies an aluminum smelter on the Nechako River. The dam built severely altered water levels and fishing in the region. Haisla Nation was consulted at the time but not the Carrie Sekani Tribal Council. During an energy agreement with between BC Hydro and Rio Tinto the Carrier-Sekani asked the commission to include the adequacy of consultation in relation to the agreement and the commission did not agree that a duty to consult had been trigged.

Issue:

  • Does the EPA renegotiation trigger the duty to consult? No

Ratio:

  • To trigger duty to consult, Crown must have a real or constructive knowledge of a claim to the resource or land to which it attaches
  • The threshold informed by the need to maintain the honour of the crown is not high
  • Three Elements that give rise to a duty to consult
  • Knowledge by the Crown of a potential claim or right
  • Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations or when a treaty right may be impacted
  • Constructive Knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may be reasonably anticipated
  • Crown Conduct or Decision
  • Must be Crown conduct or a Crown decision that engages a potential Aboriginal right
  • Conduct that may adversely impact on the claim or right in question
  • Action not confined to government exercise of statutory powers or to decisions or conduct which have an immediate impact on lands and resources (potential for adverse impact suffices)
  • Adverse Effect of the Proposed Crown Conduct on an Aboriginal Claim or Right
  • Possibility that the Crown conduct may affect the aboriginal claim or right
  • Claimant must show a causal relationship between the proposed government conduct or decision and a potential for adverse impacts on pending Aboriginal claims or rights
  • Past wrongs, previous breaches of the duty to consult do NOT suffice

Beckman v. Little Salmon/Carmacks First Nation [2010]

Facts: Court interprets 1996 Little Salmon/Carmacks First Nation Final Agreement. Dealt with application for agricultural land grant by Larry Paulsen within the settlement area and under the agreement Little Salmon had treaty rights to access the land in issue for harvesting activities but that land was available for development subject to any procedural requirements imposed by the agreement or legislation which set out commitments to create development assessment regime in new legislation that would cover such land application which was not in place ad the time Larry’s application (Government was too slow to implement it)

Issue: Does the Crown have a duty to consult with Little Salmon regarding the land grant where consultation obligations were not specifically set out in the treaty.

Held:

  • Gap in the treaty regarding procedural requirements for agricultural land grants and found that the honour of the Crown applied to the treaty to supply consultation obligations in this case.
  • Yukon’s government’s decision to grant the agricultural lands to Larry Paulsen was upheld

Ratio: