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FOUNDATIONS OF CDN LAW OUTLINE

1. Basic Theories of Law:

Positivism and Natural law

Feminist Perspectives on Law

Critical Legal Studies

Law and Economics

Legal Positivism: refelcts the belief that law is nothing more than the rules and principles that acutlaly
govern or regulate a society. Insists on the separation of law and morality. Foscuses on describing laws
without reference to justness or legitimacy.

Natural law: is aspirational in the sense that laws, properly called, are not simply all those official rules
and principles that govern us, but those that adhere to certain moral truths, most often of a universal
and immutable nature.

Feminist perspectives on law look at the extent to which women are disadvantaged by legal rules and
institutions that arise in societies that are patriarchial

Legal Realism: realists maintained that all legal rules were indetermiante in the sense that any
articulation of a rule was subject to multiple interpretations

Critical Legal Studies: law far from attempting to symbolize justice institutionalizes and legitimates the
authority and power of a particular social group or classes. law is indeterminate, full of subjective
interpretation and a large degree of incoherency

A traditional law and economics approach applies economics methodolgy to legal rules in order to
assess whether the rules will result in outcomes that are efficient.

The colonists did not discover Canada. therefore the Crowns laws should not entirely displace
indigenous law. Reception was a legal fiction necessary to colonization. This simple fact has been
judicially recognized

Canada is a a legally pluralistic state: civil law, common law and indigenous law each define ways of
resolving disputes and organizing society.

The rules of reception dicatated that the entire body of English law, both statutory and common, was
imported into the settled colony. Local exceptions and variances were allowed where the received laws
would be unsuitable to the circumstances of the colony.

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Common law judgens do not make the law but merely declare it and 2) all relevant past decisions are
considered as evidnece of the law and judges infer from these precedents what is the true law in a given
instance CL is law constructed out of a series of cases
- reliance on past cases = stare decises
- stable and predicability

equity original function was to provide a corrective to the perceived harshness of the common law
cases were decided according to the rules of equity and good conscience no formal methodology and
not strict doctrine of precedent.

Canada traditionally considers domestic law and treaty law as two distinct universes. By approaching
these two spheres of law as separate solitudes, Canada is a dualist jurisdiction. An international treaty
may require Canada as a matter of international law to change its domestic law, but in a dualist
tradition, that treaty has no direct effect in domestic law until domestic legislation is passed to
transform or implement it into Canadian law.

Canadian law insists that treaties be transformed into domestic federal law by an act of parliament

Customary rules if international law are directly incorporated into Canadian domestic law unless
explicitly ousted by contrary legislation

statutory rule will supercede judge made rule

Critical Race Feminism, an off-shoot of Critical Race Theory which originated with Black and other
scholars of colour who felt that existing legal discourse including the Critical Legal Studies discourse was
alienating to all people of colour. much work is still required in order to conceptualize a framework for
analysing the intersections of race, class, gender, sexual orientation, and disability that will assist the
courts in developing intersectional equality jurisprudence

intersectionality, defines it as intersectional oppression [that] arises out of the combination of various
oppressions which, together, produce something unique and distinct from any one form of
discrimination standing alone. Combination of discrimination i.e. gender and race together

CHARTER OF RIGHTS AND FREEDOMS :EQUALITY RIGHTS

Marginal note:Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
Marginal note:Affirmative action programs

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(2) Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability. (84)

Overlapping grounds have been described as the basing of a discrimination claim on two or more
grounds (where a finding of discrimination could be found on both grounds e.g. race and age
discrimination) and making a determination (as a matter of strategy) as to where the evidentiary
emphasis will be placed.

compound discrimination In these cases: race might compound sex inequality, or sex might
compound race inequality, that is, where these (and perhaps other) systems of oppression [do] combine
to produce an additive burden

2. Indigenous Peoples and the Law:

Aboriginal Rights and Title

Indigenous Self-Government Aspirations

The Modern Treaty Making Process

(Section 5) Constitution act as a rule of recognition and to establish the relationship between branches
of the state

The Secession Refernce is known for having established the importance of unwritten prinicples of the
Constitution as part of Canadian law. In its judgment the court identified four unwritten principles
federalism, democracy , constitutionalism and the rule of law and protection of minorities.

rule of law all exercies of legitimate public power must hav a source in law and every state official
or agency is subject to constraint of the law
constitutional supremacy the constitution is the supreme law of the society , and any ordinary law
that is inconsistent with the Constitution is of no force or effect.
Separation of powers public power is excerised through three institutioanl branches at the federal
and provincial levels the legislature, the executive, and the judiciary and each branch carries out
is funcitons in a distinct manner
parliamentary supremacy subject to the Constitution, the legislative branch of the state is the
holder of all legitimate public power and may enact any ordinary statute law and delegate any of its
power as it deems fit. statute trumps common law

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federalism legislative sovereighty in Canada is divided between a national legislature , or

Parliament, and provincial legislatures, according to a division of law-making powers or jurisdictions
set out in the Constitution.
judicial independence the judicial branch of the state must have a sufficient degree of institutional
independence from the legislative and executive branches of the state in order to perform its
constitutional law functions.

Constitution Act 1867 gave us (federalsim) and Constitution Act 1982 gave us (Charter of Rights and
Freedoms)

Constition Act 1982 Sections 52:

GENERAL
Marginal note:Primacy of Constitution of Canada
52. (1) 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.
Marginal note:Constitution of Canada
(2) The Constitution of Canada includes
o (a) the Canada Act 1982, including this Act;
o (b) the Acts and orders referred to in the schedule; and
o (c) any amendment to any Act or order referred to in paragraph (a) or (b).
Marginal note:Amendments to Constitution of Canada
(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority
contained in the Constitution of Canada.

1. Conventions come into existence on the basis of 3 factors

a) a practice or agreement developed by politicals actors;

b) a recognition by political actors that they are bound to follow the convention and
c) the existence of a normative reason that is a purpose for the convention

2. Although part of the Constitution, conventions are not law and as such cannot be enforced by the
courts. they acquire and retain their binding force by agreement and ultimately in the realm of poltics.
However courts may recognize a convention.

Conventions lack the force of law, the unwritten principles do have the force of law and can be enforced
by the courts

implicitly stated (in Re Secession) that unwritten principles cannot be viewed as overriding text. their
substantive role, at least to date, has been limited to supplementing or filling gaps in the text.

Judiciary to interpret and apply constitution judicial independence needed to preserve the interepters
of the constitution from political interference in their decision making. independent body with
interpretative power is required in a system of constitutional supremacy.

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constitutional supremacy represents a check on majoritarian democracy. it limits majority preferences

in a system of consitutional supremacy, the power to interpret and enforce the constitution against
majority preferences must be present.

Canada was founded on the basis of dividing legislative power between a national legislature,
Parliament and regional or provincial legislatures.

federalism means that regulatory authority over different aspects of Canadian society is divided
between the federal and provincial governments.

the executive is almost wholly dependent on and subordiante to the legislative branch for its authority
to act except for minor source of power royal prerogative

executive is responsibel to the legislature and must maintain the confidnece of the legislature

Amending formulae to the Constituion:

1. the general formula for all amendments not falling within formulas (2) through (5) which
requires the agreement of parliament and the legislatures of at least 2/3rds of the provinces
having at least 50 % of the population of Canada
2. Unanimity of Parliament and all provincial legislatures
3. Parliament and the legislatures of just those provinces affected by an amendment
4. parliament alone with respect to its own institutions
5. a provincial legislature alone with respect to the pronvincial constitution.

1. Section 91(24) of The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3

Powers of the Parliament

Legislative Authority of Parliament of Canada
It shall be lawful for the Queen, by and with the Advice and Consent of the
Senate and House of Commons, to make Laws for the Peace, Order, and
good Government of Canada, in relation to all Matters not coming within the
Classes of Subjects by this Act assigned exclusively to the Legislatures of the
Provinces; and for greater Certainty, but not so as to restrict the Generality
of the foregoing Terms of this Section, it is hereby declared that
(notwithstanding anything in this Act) the exclusive Legislative Authority of
the Parliament of Canada extends to all Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,

24. Indians, and Lands reserved for the Indians.

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1. Section 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11

RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

Marginal note:
Recognition of existing aboriginal and treaty rights
35. (1) The existing aboriginal and treaty rights of the aboriginal
peoples of Canada are hereby recognized and affirmed.
Definition of aboriginal peoples of Canada(2) In this Act, aboriginal
peoples of Canada includes the Indian, Inuit and Mtis peoples of Canada.
Marginal note:Land claims agreements(3) For greater certainty, in
subsection (1) treaty rights includes rights that now exist by way of land
claims agreements or may be so acquired.
Marginal note:Aboriginal and treaty rights are guaranteed equally to
both sexes(4) Notwithstanding any other provision of this Act, the aboriginal
and treaty rights referred to in subsection (1) are guaranteed equally to male
and female persons. (96)
Marginal note:
Commitment to participation in constitutional conference
35.1 The government of Canada and the provincial governments are committed to
the principle that, before any amendment is made to Class 24 of section 91 of the
Constitution Act, 1867, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item
relating to the proposed amendment, composed of the Prime Minister of
Canada and the first ministers of the provinces, will be convened by the Prime
Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal
peoples of Canada to participate in the discussions on that item. (97)

OTTAWAThe Truth and Reconciliation Commission put forward 94 recommendations to address

the continuing legacy of the residential school system, improve the plight of Aboriginal peoples and
restore relations between them and other Canadians.

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Here are a few highlights:

Child welfare

Governments should work to reduce the number of aboriginal children in care and set national
standards for those that are in care. They should also fully implement Jordans Principle to help
resolve jurisdictional disputes. This would mean that for services that are only available off-reserve,
any government department first contacted would pay for it first and seek reimbursement from the
responsible department later.
Education

Repeal Section 43 of the Criminal Code, which allows corporal punishment, even by schoolteachers,
implement new federal legislation on aboriginal education and eliminate discrepancy in federal
funding for First Nations children going to school on reserves and those educated outside their
communities.
Language and Culture

The federal government should acknowledge that aboriginal rights include language rights. Post-
secondary institutions should develop programs in aboriginal languages and survivors who had their
names changed by residential schools should have fees waived if they wish to change their
government-issued identification back to their birth names.
Health

Establish measurable goals to close the gap in health outcomes between Aboriginal peoples and
other Canadians and report on their progress, provide sustainable funding for aboriginal healing
centres and recognition of aboriginal healing practices within the health-care system.
Justice

The federal government should work with aboriginal organizations to call a public inquiry into
missing and murdered indigenous women and girls, review and amend statues of limitation for
historical abuse against aboriginal people, work to eliminate the overrepresentation of aboriginal
people in custody, allow trial judges to deviate from mandatory minimum sentences, and work to
settle claims from those residential school survivors who were excluded from the settlement
agreement, such as the Mtis, those who attended day schools and those who went to residential
schools in Newfoundland and Labrador.

The report also recommends paths to reconciliation:

Fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples,
something which the report also recommends be done by churches and all other faith and interfaith
social justice groups;
Develop a Royal Proclamation of Reconciliation that would reaffirm the nation-to-nation
relationship between Aboriginal peoples and the Crown;

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Get an apology from the Pope, by June 2016, for the role the Roman Catholic Church played in the
abuse of Aboriginal children in Catholic-run schools;
Create a mandatory, age-appropriate curriculum on residential schools, treaties and the
contributions of Aboriginal people taught across Canada from kindergarten to grade 12;
Build a highly visible Residential Schools Monument in the capital city of each province and
territory;
Develop and implement strategies to identify, document, maintain and commemorate cemeteries
at former residential schools, or other sites where their students are buried;
Increase funding for the CBC/Radio-Canada so that it can better support reconciliation and
include the languages and perspectives of Aboriginal peoples;
Change the Oath of Citizenship to include language surrounding Treaties with Indigenous
Peoples.

For over 100 years, Aboriginal children in Canada were pulled from their families
and placed in residential schools where they were subjected to physical,
emotional and sexual abuse. The purpose of the residential schools was to
aggressively assimilate Aboriginal students.

the Truth and Reconciliation Commission has concluded

that Canadas treatment of aboriginals at residential
schools amounted to cultural genocide. The commission
released 94 recommendations Tuesday as part of a
summary of its landmark final report. The report includes
a common theme of concern that its work should not be
forgotten, but rather should lead to concrete steps to
improve the lives of aboriginal people in Canada

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T he Truth and Reconciliation Commission says it is time for a

nation-to-nation relationship between aboriginals and the Crown that

respects the promises of historical treaties.

Commissioners argue that the Royal Proclamation of 1763 and recent

Supreme Court rulings should guide a new era of aboriginal rights.

The report says its time for a new royal proclamation that would be
issued by the Crown. It calls for this new relationship to be based on the
United Nations Declaration on the Rights of Indigenous Peoples, which
Canada reluctantly supported as a non-legally-binding and aspirational
document.

The commission is convinced that a refusal to respect the rights and

remedies in the declaration will serve to further aggravate the legacy of
residential schools, and will constitute a barrier to progress towards
reconciliation, the report states.

Any government policy changes in this area would have a significant

impact on future development of natural resources. The commission
argues that reconciliation should involve efforts to boost aboriginal
employment. Stronger recognition of aboriginal land rights is viewed as
part of the longer-term solution.

The church

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Pope Francis is being asked to deliver an apology on Canadian soil for

the role the Catholic Church played in colonization and managing most
of the residential schools.

The report traces the inspiration for the schools back to the Doctrine of
Discovery set by Pope Alexander VI in 1493, which granted land in North
and South America to Europeans provided indigenous people were
converted to Christianity.

Education
The TRC argues that while education is at the heart of the residential-
schools problem, it is also a key part of the solution. It is calling on
provincial education ministers to ensure that all children are taught about
aboriginal history and residential schools.

Postsecondary education is also seen as an area in need of

improvement that could ultimately increase aboriginal employment and
incomes. The report says governments need to increase funding to
increase aboriginal enrolment in colleges and universities. It is estimated
that it would cost $234-million to erase the backlog of more than 10,000
First Nation students who are currently awaiting financial support for
postsecondary education.

Children
Stories of murdered and missing aboriginal women have attracted
significant attention of late.

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The report calls for a public inquiry that would investigate the issue of
missing and murdered aboriginal women and girls as well as links to the
intergenerational legacy of residential schools.

Reducing the number of aboriginal children in state care is a key

recommendation and the commission would like governments to track
and report on their progress each year. Specifically, the report calls for
more spending on child welfare, improved training for social workers so
that they are aware of the history of residential schools, national
legislated standards and culturally appropriate programs that would
teach parenting skills in aboriginal communities.

Memory
Royal Commissions have a history of being ignored. Many of the
recommendations from the 1996 Royal Commission on Aboriginal
Peoples were never implemented.

While the TRC is different from other commissions in that it was funded
from an out-of-court settlement, the commissioners are clearly
concerned that the six years of work should not be forgotten.

To that end, the TRC is calling for a permanent National Council for
Reconciliation that would report annually to Parliament on the progress
in implementing the commissions 94 recommendations.

The TRC also recommends a new statutory holiday that would be called
a National Day for Truth and Reconciliation.

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http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf

Sinclair said the commission's findings make clear that the myriad problems of aboriginal
communities are rooted, directly or indirectly, in years of government efforts to "assimilate,
acculturate, indoctrinate and destroy."

R V. SPARROW
Facts
Sparrow was charged under the Fisheries Act for fishing with a drift net that
was longer than was permitted with his Indian fishing license. Sparrow
admitted the facts, but claimed that he had an existing aboriginal right to
fish and thus the Act is inconsistent with 35(1) of the Constitution Act, 1982
and invalid. He was unsuccessful in the lower courts which he appealed to
the Supreme Court.
Issue Edit
How are aboriginal rights recognized under 35(1)?
What is the test for the extinguishment of aboriginal rights?
Reasons Edit
Dickson and La Forest, writing for a unanimous court, say that the word
"existing" in 35(1) makes it clear that the section applies to rights that were
in existence when the Constitution Act, 1982 came into effect and thus
rights that were extinguished before 1982 are not protected under 35(1);
existing does not refer to a right that was exercisable at any point in history.
Further, the term "existing ... aboriginal rights" must be interpreted
purposively to permit their evolution over time they are not frozen in time
as they were at the passage of the Constitution Act, 1982.
The Court puts a very high test on extinguishment of aboriginal rights - the
government intention to extinguish a right must have been "clear and
plain". Merely having regulations for an activity, as in the case at bar, does
not indicate an intention to extinguish. Additionally , it is important to
specifically classify the aboriginal right in question in this case the right to
fish for food and social and ceremonial purposes.
The next question is what the words "recognized and affirmed" mean in
35(1). Continuing with the purposive approach, the Court holds that 35(1) is
a benefit incurring provision and therefore is given a large and liberal
interpretation. Interpretation of aboriginal rights must also be done in light
of the sui generis "special relationship" between the federal government
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and aboriginal people and recognize the fiduciary relationship which is

owed; the government must act as a trustee rather than adversarially
towards aboriginals.
Sparrow argued that 35(1) rights are more securely protected than Charter
rights, and thus any infringement is automatically of no force or effect
because there is no similar "reasonable limits" clause as in s. 1. The Court,
however, states that legislation affecting the exercise of aboriginal rights
will be valid if it meets a test of justification which arises from the fiduciary
relationship; there is nothing in "recognized and affirmed" which makes
such rights absolute. The Court lays out the test thusly:
Is there an aboriginal right, i.e. is the activity claimed to be an aboriginal
right an element of a practice, custom or tradition integral to the
distinctive culture of the aboriginal group claiming the right? (onus on
claimant)
Identify the nature of the claim
Determine if it was part of a pre-European contact practice that was
integral to the distinctive culture in question (central, not
incidental, but need not be unique)
If so, was there sufficient continuity between the modern activity and the
traditional practice? If there is an aboriginal right, has it been
extinguished? (onus on Crown)
Does the legal regulation demonstrate a "clear and plain" intention
to extinguish the right?
If the aboriginal right has not been extinguished, can the claimant show a
prima facie infringement? (onus on claimant)
Is the limitation unreasonable?
Does it pose undue hardship?
Does the regulation deny rights holders the preferred means of
exercising their right?
Can the government justify the infringement? (onus on Crown)
Is there a valid objective on the part of the Crown?
Is the government employing means which are consistent with their
fiduciary duty to the aboriginal nation at issue?
Was the infringement as minimal as possible?
Were their claims given priority over other groups?
Was the effected aboriginal group consulted?
If there was expropriation, was there fair compensation?
Ratio Edit
Aboriginal rights are not frozen in time all aboriginal rights that were not

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extinguished before 1982 must be dealt with as they develop in the

modern world.
In order to extinguish an aboriginal right, the Crown must make it "clear
and plain" that it intended to do so; simply regulating an aboriginal
right does not amount to extinguishing it.
The Crown owes a fiduciary duty to aboriginals in recognition of their
"special relationship".
Establishes the test for the analysis of aboriginal rights in light of 35(1).

R. v. Sparrow [1990]
R v. Sparrow was a precedent-setting decision made by the Supreme Court
of Canada that set out criteria to determine whether governmental
infringement on Aboriginal rights was justifiable, providing that these rights
were in existence at the time of the Constitution Act, 1982. This criteria is
known as the Sparrow Test.
History of the Sparrow Case
Musqueam have inhabited the Fraser River delta and neighbouring areas
since time immemorial. As coastal peoples, the Musqueam have depended
on this river and fishing for sustenance for generations. Following European
settlement in the Lower Mainland, the Musqueam saw their rights to the land
and its resources infringed upon as non-Aboriginal fishers took increasing
control of the fishing industry. New regulations set up by the government
introduced fishing licenses and restricted Aboriginal peoples to food
fishing,-- fishing strictly for their own personal consumption. Despite these
restrictions, the Musqueam continued to exercise what they deemed to be
their inherent and unextinguished right to maintain their culture and ways of
life, particularly in relation to fishing.
In 1984, Musqueam band member Ronald Sparrow was arrested for fishing
with a net longer than was permitted by his food fishing license. His arrest
and subsequent court case led to one of the most defining decisions by the
Supreme Court of Canada regarding Aboriginal rights. Musqueam community
members recognized Sparrows arrest as a threat to their collective rights,
and to the rights of Aboriginal people across Canada. As such, the
Musqueam band decided to defend to the charge against Sparrow. They
outlined five main arguments:
That the Musqueam retained the right to fish on the territories they had
inhabited and fished on for centuries;
That Musqueams rights to the land and its resources had never been
extinguished by treaty;
That Section 35 of the 1982 Constitution Act reinforced Musqueams right
to fish;
That any infringement on Aboriginal fishing rights was invalid, as
evidenced by Section 35, unless justified as being a necessary measure of

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conservation, and
That a restriction on net length infringed on Musqueams fishing rights and
was not justified by reason of conservation.1
The case was first heard in the British Columbia (BC) Provincial Court, which
found Sparrow guilty of violating the terms of his fishing license. This
conviction was appealed to the BC County Court, which ruled in the same
manner as the Provincial Court. Musqueam then appealed to the BC Court of
Appeals and won their appeal. In 1988, the case was heard in the Supreme
Court of Canada and in 1990, 6 years after Ronald Sparrows arrest, the
court ruled in favour of the Musqueam. The Supreme Courts decision ruled
that, despite nearly a century of governmental regulations and restrictions
on Musqueams right to fish, their Aboriginal right to fish had not been
extinguished. This decision was arrived upon by the Courts interpretation of
the phrase existing Aboriginal and treaty rights are hereby recognized and
affirmed in Section 35.
Section 35 had been added to the Constitution in 1982 to protect Aboriginal
rights. However, those rights had yet to be explicitly defined. The Supreme
Court of Canada ruled that Musqueam's Aboriginal right to fish had not been
extinguished prior to the 1982 Constitution and that, as such, Mr. Sparrow
had an existing right to fish at the time of his arrest. The Court also ruled
that the words recognized and affirmed, as they appear in Section 35,
mean that the government cannot override or infringe upon these rights
without justification. This point essentially upheld the then-recent R. v.
Guerin decision that the government has a fiduciary duty to First Nations.
Section 35(1) does not promise immunity from government regulation in
contemporary society but it does hold the Crown to a substantive promise. 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).

The Sparrow Test

The Court's ruling resulted in what is known today as the Sparrow test,
which sets out a list of criteria that determines whether a right is existing,
and if so, how a government may be justified to infringe upon it.
The Sparrow test first seeks to define whether or not a right has been
infringed upon. A government activity might infringe upon a right if it:
Imposes undue hardship on the First Nation;
Is considered by the court to be unreasonable;
Prevents the right-holder from exercising that right.
The Sparrow test then outlines what might justify an infringement upon an
Aboriginal right. An infringement might be justified if:
The infringement serves a valid legislative objective. The court
suggested a valid legislative objective would be conservation of natural
resources, in which First Nations interest would come second only to that;
There has been as little infringement as possible in order to effect the

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desired result;
Fair compensation was provided, and,
Aboriginal groups were consulted, or, at the least informed.
The Supreme Court also acknowledged that other considerations may be
taken into account, depending on the circumstances of the infringement.
The Sparrow case has elicited mixed reactions amongst those concerned
with Aboriginal rights. Although many recognize the Sparrow case as a
significant victory for those interested in the affirmation of Aboriginal
rights,2 it also confirms that these rights are not absolute, and can be
infringed upon providing the government can legally justify it. Further, the
Court also did not outline what would qualify as adequate consultation or
compensation regarding rights infringement. Outstanding questions
regarding adequate consultation with First Nations would eventually be
examined in the Supreme Court decisions Taku River Tlingit (2004) and
Haida Nation (2004).

R v Sparrow, [1990] 1 SCR 1075

Facts:
S, member of M Band, charged under Fisheries Act for fishing w/ net longer
than permitted by bands license. Defence - he was exercising an existing
aboriginal right to fish and net length restriction is inconsistent w/ s.35(1)
Issue(s):
What is the scope of s.35(1)?
Ratio:
s.35 rights are not absolute gov can regulate subject to constitutional limits.
Fed power has to be reconciled w/ fed duty (in relation to justification part of
test)
Test for prima facie interference w/ an existing aboriginal right
1. Set out the existing Aboriginal right
2. Does the leg in question have the effect of interfering w/ an existing
aboriginal right? Infringement?
a.If yes, prima facie infringement
b. This inquiry begins w/ reference to the characteristics or incidents of
the right at stake
i. This case fishing rights not traditional prop rights are rights held by
collective
ii. Must be sensitive to aboriginal perspective
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c. To determine if rights have been interfered w/ to constitute a

infringement, ask
i. Is the limitation unreasonable?
ii. Does the regulation impose undue hardship?
iii. Does the regulation deny to the holders of the right their preferred
means of exercising that right?
d. Onus or proving infringement lies on indiv or group challenging the leg
3. Can it be justified Ask onus on gov (see Gladstone for addition to this
test)
a. Is there a valid leg objective?
i. Ex objective aimed at preserving s.35(1) rights by conserving and
managing a natural resource would be valid
ii. If yes, proceed
b. Does the infringement unduly restrict the exercise of the right?
i. Look to priority in allocation reflection of fiduciary relationship
c. Can the special trust relationship between gov and Indians justify the
action?
i. Must be link between q of justification and allocation of priorities in
fishery
d. Additional questions can be looked at depending on facts
i. Infringement as minimal as possible?
ii. Fair compensation? (for expropriation)
iii. Consultation of Aboriginal group?
Analysis:
s.35(1) is context specific analyzed on case by case basis
Is to be a limit on gov power
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Not subject to s.1 (Oakes) or s.33 they are outside the Charter
Meaning of Existing
*Extinguished rights are not revived by CA 1982
*Must be interpreted flexibly
This case aboriginal right
*M had lived in their territory for over 1500 years
*Crown insisted that right to fish had been extinguished by Fisheries Act
*Test for extinguishment Sovereigns intention must be clear and plan if it is
to extinguish an aboriginal right
Nothing in fisheries act meets this test so rights was not extinguished
*Scope of existing M right to fish?
BC CA right to fish for subsistence and also for social and ceremonial
activities SCC agrees
Meaning of Recognized and Affirmed
*S.35(1) must be construed in a purposive way generous, liberal
interpretation of the words is demanded
*Guiding principles for 35(1) gov has responsibility to act in a fiduciary
capacity w/ respect to aboriginal peoples
*Treaties and statutes relating to Indians should be liberally construed and
doubtful expression resolved in favour of the Indians (Nowegijick)
*Regulation affecting aboriginal rights is not precluded, but must be enacted
according to a valid objective
*Gov bears burden of justifying any leg that has some negative effect on any
aboriginal right protected under s.35(1)
Holding:
New trial ordered
Comments:
Regulation is not the same as extinguishment

Rio Tinto Alcan Inc. v Carrier Sekani

Tribal Council
A dam and reservoir was built in the 1950s which altered the amount and
timing of water in the Nechako River. The Carrier Sekani claim the
Nechako Valley as their ancestral homeland, and the right to fish in the
Nechako River, but, pursuant to the practice at the time, they were not
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consulted about the dam project. Excess power generated by the dam is
sold by Alcan to BC Hydro. In 2007, the First Nation asserted that the new
Energy Purchase Agreement should be subject to consultation under s. 35.
The Utilities Commission accepted that it had the power to consider the
adequacy of consultation with Aboriginal groups, but found that the
consultation issue could not arise as the purchase agreement would not
adversely affect any aboriginal interest. The British Columbia Court of
Appeal reversed the Commission's orders and remitted the case to the
Commission for evidence and argument on whether a duty to consult the
First Nations exists and, if so, whether it had been met.
Issue Edit
When does a duty to consult arise?(Crown and Aboriginals)
Reasons:
McLachlin, writing for a unanimous court, reaffirmed the general approach
set out in Haida Nation that the duty to consult arises when the Crown has
knowledge of the potential existence of the Aboriginal right or title and
contemplates conduct that might adversely affect it. She stated that the
Crowns failure to consult can lead to a variety of remedies including
injunctive relief, an order to carry out additional consultation, and/or
damages.
She stated that government action which triggers the duty to consult is not
limited to the exercise of statutory powers and extends to "strategic, higher
level decisions" that may have an impact on aboriginal claims and rights,
including the transfer of tree farm licences, the approval of a multi-year
forest management plan over a large geographic area, the establishment of
a review process for a major gas pipeline, and a comprehensive inquiry to
determine a provinces infrastructure and capacity needs for electricity
transmission. McLachlin stated that the Court would leave the issue of
whether "government conduct" for the purposes of consultation also applies
to legislative action for another day.
On the issue of what constitutes an "adverse effect" for the purpose of
triggering the duty to consult, the claimant must show a causal relationship
between the proposed government conduct or decision and a potential for
adverse impacts on pending claims or rights; past wrongs, including
breaches of the duty to consult, do not suffice.
Regulatory tribunals that address issues that touch on aboriginal interests
may have the Crown's duty to consult delegated to them, or may have their
power limited to determining whether adequate consultation has taken
place, or finally have none of these powers. Tribunals must be expressly or

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implicitly empowered to consult or consider whether consultation that had

occurred has been adequate. If the tribunal structure set up by the
legislature is incapable of dealing with a decision's potential adverse
impacts on aboriginal interests, then the aboriginal peoples potentially
impacted must seek the appropriate remedies in the courts. The legislation
empowering the tribunal will need to be reviewed carefully to determine
whether and to what extent a tribunal can address the issue of consultation.
In this case, McLachlin concluded that the Commission has the
constitutional jurisdiction to consider the adequacy of Crown consultation in
regard to matters that are properly before it, but the Utilities Commission
Act did not empower it to engage in consultations in order to discharge the
duty. The Court confirmed that BC Hydro, as a Crown corporation, held the
Crown's duty to consult. The Commission acted reasonably and correctly
held that the purchase agreement did not have the potential to adversely
affect the claims or rights of the Carrier Sekani First Nations.
Ratio:
The duty to consult arises when:
the Crown has knowledge, actual or constructive, of a potential aboriginal
claim or right;
the Crown must be contemplating conduct which engages a potential
aboriginal right; and
there must be the potential that the contemplated conduct may adversely
affect an aboriginal claim or right.

Rio Tinto Alcan Inc. v Carrier Sekani

Tribal Council
On October 28, 2010, the Supreme Court of Canada released its unanimous decision
in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council1 and held that the British
Columbia Utilities Commission ("BCUC") had the authority to consider whether
adequate Crown consultation with aboriginal peoples occurred in connection with its
review of whether an electricity purchase agreement ("EPA") was in the public
interest.
This is the fourth decision from the Court to address Crown consultation obligations
to aboriginal peoples. The decision is important for its treatment of what triggers
the duty to consult and the need for a direct causal relationship between the

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potential for an adverse effect on an aboriginal interest and a given government

decision or action. It also provides guidance to tribunals, and those who appear
before them, as to the Courts views of the appropriate role for such tribunals in
dealing with the Crowns duty to consult aboriginal peoples.
The Decision
The Court affirmed the BCUCs decision regarding the EPA and held that the BCUC
reasonably considered and addressed the issue of consultation in its proceedings.
The Court reaffirmed its general approach set out in Haida Nation v. B.C.3 that the
duty to consult arises "when the Crown has knowledge, real or constructive, of the
potential existence of the Aboriginal right or title and contemplates conduct that
might adversely affect it."4 The Court confirmed that the duty to consult has a legal
and constitutional character.5 The Court stated that the Crowns failure to consult
can lead to a variety of remedies including injunctive relief, an order to carry out
additional consultation, and damages. The Court also confirmed that government
action triggering the duty to consult is not limited to the exercise of statutory
powers and extends to "strategic, higher level decisions" that may have an impact
on aboriginal claims and rights, including the transfer of tree farm licences, the
approval of a multi-year forest management plan over a large geographic area, the
establishment of a review process for a major gas pipeline, and a comprehensive
inquiry to determine a provinces infrastructure and capacity needs for electricity
transmission. McLachlin C.J. stated that the Court would leave the issue of whether
"government conduct" for the purposes of consultation also applies to legislative
action for another day.7
On the issue of what constitutes an "adverse effect" for the purpose of triggering
the duty to consult, the Court stated that the claimant:
must show a causal relationship between the proposed government conduct or
decision and a potential for adverse impacts on pending claims or rights. Past
wrongs, including breaches of the duty to consult, do not suffice.8
The Court went on to say that speculative impacts and impacts on future
negotiating positions will not trigger the duty.9 A past or continuing breach of a
claim or right, including prior failures to consult, will only trigger a duty to consult if

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the present decision at issue causes a new adverse effect.10

The Court stated that regulatory tribunals that address issues that touch on
aboriginal interests may have the Crowns duty to consult delegated to them, or
may have their power limited to determining whether adequate consultation has
taken place, or finally have none of these powers. Tribunals must be expressly or
implicitly empowered to consult or consider whether consultation that had occurred
has been adequate.11 If the tribunal structure set up by the legislature is incapable
of dealing with a decisions potential adverse impacts on aboriginal interests, then
the aboriginal peoples potentially impacted must seek the appropriate remedies in
the courts.12 The legislation empowering the tribunal will need to be reviewed
carefully to determine whether and to what extent a tribunal can address the issue
of consultation.
In this case, the Court concluded that the BCUC has the constitutional jurisdiction to
consider the adequacy of Crown consultation in regard to matters that are properly
before it, but the Utilities Commission Act did not empower the BCUC itself to
engage in consultations in order to discharge the duty.13 The Court confirmed that
BC Hydro, as a Crown corporation, held the Crowns duty to consult it was acting
in the place of the Crown.14 The BCUC acted reasonably and correctly held that the
EPA did not have the potential to adversely affect the claims or rights of the CSTC
First Nations.15
Discussion
The Courts clarification regarding the need for a direct causal relationship between
the potential for an adverse effect and the government decision or action at issue is
significant and will likely have a direct impact on how all parties involved in
consultation approach the issue. An ancillary effect, although not expressly stated,
may also be to limit the ability of aboriginal peoples to argue that the cumulative
effects of projects in a particular area need also be considered as part of
consultation given that drawing a direct causal relationship between potential
cumulative effects (regarding unknown future events or projects) will be challenging.
Equally important is the Courts rejection of consultation being appropriate for past
events or decisions that may adversely affect aboriginal interests, including the lack

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of past consultation. The Court confirmed that consultation must be focused on the
action or decision at hand and not focused on past events. The Court stated that
other remedies are available to aboriginal peoples for such past events, although
the Court did not expressly provide guidance on the nature of the specific cause of
action that would be required to remedy such past wrongs.
The Court made several references to compensation and damages being an
appropriate remedy in cases where the Crown did not consult. While the Court cites
Haida as authority for this proposition, nowhere in Haida did the Court discuss
damages or compensation as an appropriate remedy for breach of the duty to
consult regarding unproven or asserted rights. Up until Rio Tinto, the issue of
compensation for breaches of section 35 generally has been focused around
infringements of established aboriginal or treaty rights. It remains unclear whether
the Court intended to apply compensation to consultation regarding unproven
rights and, if so, would such compensation be related to the infringement of an
unproven right or would it be limited to the fact that consultation had not occurred?
In either case, this raises the question of how damages to unproven rights would be
established and why an aboriginal group would ever need to establish an aboriginal
right in the first place if compensation is payable simply upon not be consulted.
Finally, the Court did not set out the nature of the cause of action to pursue the
compensation remedy.
Regarding the issue of the role of tribunals, the Court has taken the view that
tribunals must be expressly or implicitly empowered to consider whether
consultation has occurred and to conduct consultation in a given instance. The Court
appeared not to provide any support for the proposition that tribunals publicly
available hearing processes, by themselves, are a form of consultation
notwithstanding that many tribunals across Canada have relied on such hearing
processes as, at minimum, assisting the Crown in carrying out its duty. Notably,
while the Court acknowledges the concern that governments may effectively avoid
their duty to consult by limiting a tribunals statutory mandate through legislation, it
references Haida for the proposition that in such cases aboriginal peoples must seek
appropriate remedies in the courts.16 It is not clear, however, on what basis

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aboriginal peoples would seek a remedy in the courts, whether simply on the basis
of infringement of a proven aboriginal right (imposing a high burden on the
affected aboriginal people) or on the basis of some other cause of action. If the
latter, the Courts deferral of the issue of whether "government conduct" for the
purposes of consultation also applies to legislative action may become particularly
relevant. Finally, it is interesting to note that the decision appears to support the
somewhat surprising conclusion that the Crowns duty to consult would not be
triggered in cases where the BCUC was asked to consider an application by a private
proponent (rather than a Crown corporation).
The conclusions concerning tribunals will likely raise significant issues for
governments and industry proponents across Canada as they attempt to establish
whether a given tribunal has the concomitant authority and jurisdiction to decide
questions relating to consultation and/or actually carry out consultation. In any
event, it will likely result in governments and tribunals reviewing all of their existing
statutes to determine what, if any, regulatory or consultation vacuums need to be
filled. This issue also raises serious issues of whether other Crown actors have the
legislative authority to bind regulatory tribunals who do not have the authority to
carry out consultation but are being guided by other governmental actors regarding
consultation and accommodation issues generally. This will likely be an important
issue to monitor in the coming years.
Finally, for Crown corporations across Canada, Rio Tinto appears to stand for the
proposition that such corporation will hold the duty to consult notwithstanding that
they may also be a project proponent seeking approval from another government
agency (for example, BC Hydro seeking the approval of the BCUC regarding the
EPA).

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010

SCC 43, [2010] 2 SCR 650
The assertion of Crown sovereignty is a question that has never been resolved in Canadian constitutional
jurisprudence. The mindset of original settlers was that Aboriginal peoples did not count as inhabitants of the
land, so discovery applied in order to assert sovereignty. As Canada moves to an era of equality of all peoples,

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ignoring a sound basis for the assertion of sovereignty becomes unacceptable. In the spirit of promoting a just
and lasting reconciliation for the wrongs done by original settlers to Aboriginals, Canadian constitutional
jurisprudence has developed over the years in a manner that recognizes and protects Aboriginal rights. For
example, the courts have interpreted s. 35.(1) of the Charter, a provision that entrenches the recognition of
Aboriginal rights into our Constitution, to protect activity-specific rights (ie. fishery, hunting, etc.); aboriginal
title; self-government; and treaty rights. In Haida Nation v British Columbia (Minister of Forests), [2004] 3
SCR 511 [Haida Nation], the courts recognized the Crowns duty to consult in circumstances where aboriginal
rights have not yet legally crystallized. Governments are under an obligation pursuant to the honour of the
Crown to consult with Aboriginal peoples before authorizing projects that could have a negative impact on the
Aboriginals ability to exercise treaty or aboriginal rights in the future. A veto is not granted to Aboriginals,
but a significant degree of consultation and accommodation is required. Rio Tinto Alcan Inc v Carrier Sekani
Tribal Council, [2010] 2 SCR 650 deals with Crowns duty to consult in the context of administrative
tribunals.

Power

In the 1950s, the government of British Columbia authorized the building of the Kenney Dam on the Nechako
River in Northwest British Columbia for the production of hydropower. A license was granted to Rio Tinto
Alcan Inc (Alcan) giving use of the water on a permanent basis. Pursuant to practice at the time, the Carrier
Sekani Tribal Council (CSTC) First Nations were not consulted about the dam project, although they have
been using the waters of the Nechako River for fishing and sustenance since time memorial. The dam
significantly affected the amount and timing of water flows into the Nechako River to the east, impacting
fisheries on lands now claimed by the CSTC. Since 1961, Alcan has sold its excess power from the dam to
British Columbia Hydro and Power Authority (BC Hydro), a Crown corporation. In 1987, a Settlement
Agreement was arranged between Alcan, British Columbia and Canada on the release of waters in order to
protect fish stocks. In 2007, an Energy Purchase Agreement (EPA) was entered into between BC Hydro and
Alcan, committing Alcan to supply and BC Hydro to purchase excess electricity until 2035. Additionally, the
EPA establishes a Joint Operating Committee to advise the parties on the administration of the EPA and the
operation of the reservoir.

Pride

The CSTC First Nations claim the Nechako Valley as their ancestral homeland, and the right to fish in the
Nechako River. Pursuant to rights of the aboriginal peoples of Canada enshrined in s. 35 of the Constitution
Act, 1982, the CSTC assert that the 2007 EPA should be subject to consultation. The duty to consult arises
when the Crown has knowledge, real or constructive, of the potential or actual existence of the Aboriginal
right or title and contemplates conduct that might adversely affect it (Haida Nation, para 35). In recognition of
the honour of the crown, prior to the final resolution of claims, there is an implied duty to consult with
Aboriginal claimants with a view to reconciliation. The purpose of consultation is to protect unproven or
established rights from irreversible harm as settlement negotiations (ie. treaty process) proceed.

The Issues on Appeal

There were two main issues on appeal to the Supreme Court of Canada (SCC):

1. Whether the Commission had jurisdiction to consider consultation; and

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2. If so, whether the Commissions refusal to rescope the inquiry to consider consultation should be set
aside.

The Compromise (Decision of the SCC)

Tribunals are confined to the powers conferred on them by their constituent legislation. The legislature may
choose to delegate to a tribunal the Crowns duty to consult or it may confine a tribunals power to
determinations of whether adequate consultation has taken place. The power to engage in consultation itself, as
distinct from the jurisdiction to determine whether a duty to consult exists, cannot be inferred from the mere
power to consider questions of law; the tribunal must be expressly or impliedly authorized to do so. A tribunal
seeking to engage in consultation must possess remedial powers necessary to do what it is asked to do in
connection with the consultation. If the tribunal structure set up by the legislature is incapable of dealing with a
decisions potential adverse impacts on Aboriginal interests, then the Aboriginal interests must seek
appropriate remedies in the courts. Upon inspection of the Utilities Commission Act, the Commission has the
constitutional jurisdiction to consider the adequacy of Crown consultation in relation to matters properly
before it. However, the Act does not empower the Commission to engage in consultations in order to discharge
the Crowns constitutional obligation to consult.

In reaching its decision to not consider the adequacy of consultation with Aboriginal groups, the Commission
concluded that the 2007 EPA would not adversely affect any Aboriginal interest. As aforementioned, the duty
to consult arises when the Crown has knowledge, real or constructive, of the potential or actual existence of
the Aboriginal right or title and contemplates conduct that might adversely affect it. The first element
Crown knowledge of a potential Aboriginal claim or right is easily established as the CSTC First Nations
claims were lodged in the Provinces formal claims resolution process. The second element proposed Crown
conduct or decision is also easily established. Since BC Hydro is a Crown corporation, the proposal to enter
into the 2007 EPA is proposed crown conduct. The third element adverse impact on an Aboriginal claim or
right caused by the Crown conduct is where the difficulties arise.

Firstly, the Commission was correct in concluding that the underlying infringement (ie. the failure to consult
when the dam was originally established in the 1950s) in and of itself does not constitute an adverse impact
that gives rise to a duty to consult. The duty to consult will be triggered if the present decision has the potential
of causing a novel adverse impact on a present claim or existing right. Remedies for past and continuing
breaches should be remedied through negotiating compensation (ie. awarding of damages). Secondly, applying
a common law reasonableness standard of review, the Commissions decision that the 2007 EPA did not
adversely impact the Aboriginal interests was reasonable. Based upon the evidence before the Commission, the
tribunal held that the 2007 EPA would not have an impact on the rivers water levels. Additionally, they found
that the 2007 EPA would not effect management changes, ruling out any attendant adverse impact.

These holdings of the SCC are in favour of the appellants (Alcan and BC Hydro); however, the court extended
an olive branch to the CSTC First Nations. As mentioned above, the 2007 EPA calls for the creation of a Joint
Operating Committee (composed of representatives of Alcan and BC Hydro) to advise the parties on the
administration of the EPA and the operation of the reservoir. The honour of the Crown requires BC Hydro to
give the CSTC First Nations notice of any decisions under the 2007 EPA that have the potential to adversely

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affect their claims or rights. They are required to take into account and consult as necessary with affected
Aboriginal groups insofar as any decision taken in the future have the potential to adversely affect their rights.

Delgamuukw v British Columbia

Facts Edit

The appellants claimed title to a plot of land of more than 58,000 square kilometers on the basis of
aboriginal title that was never extinguished. There were 71 individual plaintiffs claiming title. In the
original trial the plaintiffs tried to obtain "ownership", however upon appeal this was changed to
"aboriginal title and self government". The case was dismissed at trial and on appeal the claims of all
of the houses were grouped together into one and their claims dismissed.

Issue Edit

1. What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution
Act, 1982?
2. Did the province have the authority to extinguish the title after confederation?

the Court goes on to make several important decisions about aboriginal title. They reaffirm that it
definitely does exist and further that provincial governments never had the jurisdiction to extinguish it
because it falls under federal jurisdiction under s. 91(24) of the Constitution Act, 1867.
The Court states clearly that aboriginal title is special for a few reasons. It is inalienable it cannot
be transferred to anyone other than the Crown. Its source is unique as it arises from occupancy
before sovereignty. Finally, the aboriginals hold the title communally. The court states that aboriginal
title is given full protection under s. 35(1). They also establish the test for determining if aboriginal
title exists. For it to be present it must satisfy the following criteria:
1. the land must have been occupied before sovereignty,
2. there must be a continuity between pre-sovereignty and modern times (but not an unbroken
chain)
3. at the time of sovereignty, the occupancy must have been exclusive (but it could have been
jointly exclusive by more than one party or tribe).

Delgamuukw v British Columbia

Issue

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What is the nature of the protection given to aboriginal title under s. 35(1) of theConstitution Act? Did the province have the
authority to extinguish the title after confederation?

Facts Edit

The appellants claimed title to a plot of land of more than 58,000 square kilometers on the basis of aboriginal
title that was never extinguished. There were 71 individual plaintiffs claiming title. In the original trial the
plaintiffs tried to obtain "ownership", however upon appeal this was changed to "aboriginal title and self
government". The case was dismissed at trial and on appeal the claims of all of the houses were grouped
together into one and their claims dismissed.

Issue Edit
1. What is the nature of the protection given to aboriginal title under s. 35(1) of the Constitution Act,
1982?
2. Did the province have the authority to extinguish the title after confederation?

Reasons Edit

The final ruling is for a new trial as the grouping of the plaintiffs together was seen as unfair to the defendants.
However, the Court goes on to make several important decisions about aboriginal title. They reaffirm that it
definitely does exist and further that provincial governments never had the jurisdiction to extinguish it because
it falls under federal jurisdiction under s. 91(24) of the Constitution Act, 1867.
The Court states clearly that aboriginal title is special for a few reasons. It is inalienable it cannot be
transferred to anyone other than the Crown. Its source is unique as it arises from occupancy before sovereignty.
Finally, the aboriginals hold the title communally. The court states that aboriginal title is given full protection
under s. 35(1). They also establish the test for determining if aboriginal title exists. For it to be present it must
satisfy the following criteria:
1. the land must have been occupied before sovereignty,
2. there must be a continuity between pre-sovereignty and modern times (but not an unbroken chain)
3. at the time of sovereignty, the occupancy must have been exclusive (but it could have been jointly
exclusive by more than one party or tribe).

If these are established, then aboriginal title exists. If it partially fails, it is possible to establish a claim less
than title.

They go on to say that this is not an absolutely protected title. It can be infringed upon if the infringement
passes a two-part test:

1. the infringement must be in furtherance of a legislative objective that is compelling and substantial,
2. the infringement must be consistent with the special relationship between aboriginals and the Crown.

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This relationship is special because both the ideas of the common law and the aboriginal traditions must be
taken into consideration when making the decisions, as aboriginals are a unique case and must be given respect
in terms of their traditions and laws.

Ratio Edit

Only the federal government can extinguish aboriginal title.

Aboriginal title is inalienable to anyone but the Crown, it arises before sovereignty, and it is held
communally. must be exclusive (but can be jointly exclusive)
Lays out the test to establish aboriginal title.
Lays out the test for infringement of aboriginal title.

Notes Edit

Normally the courts demand direct evidence, and do not accept hearsay. However, in aboriginal title
claims they are talking about record from before the time they were written down. Therefore, in order
to claim their title the courts have to accept the oral history from the members of the first nation. The
Supreme Court holds that oral histories must be given weight.

Delgamuukw v. British Columbia (SCC)

The action was later transformed into a claim for aboriginal title over the land in question. The province of
British Columbia counterclaimed for a declaration that the Hereditary Chiefs have no right or interest in the
territory.
3. In the result, the Supreme Court of Canada unanimously held that aboriginal title consists of the right to
exclusively use and occupy the land including the right to choose how the land can be used, reasoning that
aboriginal title has an "inescapable economic component." The Court allowed the appeal, in part, because the
trial judge had not afforded the oral history evidence called at the trial appropriate weight, and therefore, his
treatment of the oral history did not conform to evidentiary principles applicable in aboriginal rights cases as
enunciated in the Supreme Court of Canada's decision in R v. Van der Peet. The Court ordered a new trial.
4. The Supreme Court addressed a number of substantive issues and enunciated important principles relating
to: the significance of oral history, aboriginal title, the test for proving aboriginal title, the scope of
constitutional protection to be afforded to aboriginal title, and limitations on the provincial power to extinguish
aboriginal title.
A. Oral History

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5. The Court acknowledged the conventional evidentiary difficulties posed by the use of oral history; however,
it accentuated its importance in the adjudication of aboriginal rights and held:
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of
evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal
footing with the types of historical evidence that courts are familiar with, which largely consists of historical
documents (para. 87).
6. In essence, the Court re-affirmed the special evidentiary principles regarding judicial treatment of oral
history which were set out in its decision in Van der Peet. Trial courts must accord independent weight to oral
history, while recognizing the evidentiary difficulties inherent in adjudicating First Nations claims:
7. As such, oral history need not provide definitive and precise evidence of pre-sovereignty First
Nation occupation on the territory in question, but may demonstrate that current occupation has its
origins prior to sovereignty. Further, the interpretation of the evidence must give due weight to the
First Nations perspective regarding practices, customs, traditions and their relationship with the land.

The Content of Aboriginal TitleAboriginal 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 (para. 111).
What aboriginal title confers is the right to the land itself (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; and...that those protected uses must not be irreconcilable with the
nature of the group's attachment to that land (para. 117).
9. The Court further stated that "aboriginal title encompasses within it a right to choose to what end a piece of
land can be put" (para. 168), subject to an inherent limitation apparent in the preceding quote, and that it has an
"inescapable economic component" (para. 166). Based on this definition of aboriginal title, the Court
specifically included mineral rights and their exploitation within the ambit of aboriginal title:
On the basis of Guerin, aboriginal title also encompasses mineral rights, and lands held pursuant to aboriginal
title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands
(para. 122).
10. The limitation, however, is that the uses to which the lands are put must not be irreconcilable with the
nature of the group's attachment to those lands (para. 125). By way of illustration, if hunting practices were
used to demonstrate occupation of, or attachment to territory claimed as aboriginal title lands, the First Nation
cannot strip mine the territory. Such use, according to this reasoning, would destroy the future value of hunting
practices and, thus, be inconsistent with the First Nation's attachment to the land in question. In keeping with
the sui generis, or unique, quality of aboriginal title, the Court supported its conclusion with the following
reasoning:
What the inalienability of lands held pursuant to aboriginal title suggests is that those lands are more than a
fungible commodity. The relationship between an aboriginal community and the land over which it has
aboriginal title has an important non-economic component. The land has an inherent and unique value in itself,
which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses
which would destroy that value (para. 130).

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11. Accordingly, the Court held that those uses that threaten the nature of the prior occupation of the lands and
the future relationship between the First Nations and the lands are excluded from the content of aboriginal title.
However, it must be noted that:
This is not, I must emphasize, a limitation that restricts the use of the land to those activities that have
traditionally been carried out on it (para. 132).
12. If First Nations intend to use their lands in a restricted way, e.g. strip mining a hunting ground, they must
surrender those lands to the Crown and convert them into "non-title lands" (para. 131). The exact nature of
"non-title lands" was not addressed by the Court.
C. Proof of Aboriginal Title
13. In order to make out a claim for aboriginal title, the First Nation asserting title must satisfy the following
criteria:
(i) the land must have been occupied prior to European sovereignty (in British Columbia, 1846);
(ii) if present occupation is relied on as proof of occupation pre-sovereignty, then there must be a continuity
between present and pre-sovereignty occupation; and
(iii) at sovereignty, that occupation must have been exclusive (para. 143).
14. Establishment of occupation of the land requires a court to take into account both the common-law and the
aboriginal perspective regarding the land in question, including aboriginal systems of law (para. 147).
"Occupancy is determined by reference to the activities that have taken place on the land and the uses to which
the land has been put by the particular group" (para. 128), and may be established, for example, by proof of
houses or dwellings situated on the land, cultivation, enclosure of fields and regular use of definite tracts of
land for exploiting resources (para. 149).
15. Proof of continuity between present and pre-sovereignty occupation need not constitute "an unbroken chain
of continuity" (para. 153, quoting from Van der Peet):
The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of
European colonizers to recognize aboriginal title. To impose the requirement of continuity too strictly would
risk "undermining the very purpose of s. 35(1) by perpetuating the historical injustice suffered by aboriginal
peoples at the hands of colonizers who failed to respect" aboriginal rights to land (para. 54, quoting in part
from R. v. Cote).
Rather, evidence of substantial maintenance of the connection between the people and the land is sufficient to
establish continuity, even if the nature of the occupation has changed over time (para. 154).
16. With respect to the requirement of exclusive occupation, the Court reasoned that "[t]he proof of title must,
in this respect, mirror the content of the right" (para. 155). Such proof must also rely on both the common law
and the aboriginal perspective. The Court cautioned against strict adherence to the requirement of exclusive
occupation when determining whether aboriginal title exists:
.the test required to establish exclusive occupation must take into account the context of the aboriginal society
at the time of sovereignty. For example, it is important to note that exclusive occupation can be demonstrated
even if other aboriginal groups were present, or frequented the claimed lands...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 (para. 156).
Hence, actual exclusivity is not required as exclusive occupation may be demonstrated by the "intention and
capacity to retain exclusive control" (para. 156 quoting McNeil,Common Law Aboriginal Title (1989) at 204).

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17. It is important to note that the Court recognized the possibility of shared exclusivity between two First
Nations, resulting in joint title:
I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be
reconciled by recognizing that joint title could arise from shared exclusivity (para. 158).
D. Constitutional Protection
18. Aboriginal title is recognized and affirmed as an "existing aboriginal right" in section 35 of
the Constitution Act, 1982 and confers a right in land:
[A]boriginal title is "simply one manifestation of a broader-based conception of aboriginal rights". Thus,
although aboriginal title is a species of aboriginal rights recognized and affirmed by s. 35(1), it is distinct from
other aboriginal rights because it arises where the connection of a group with a piece of land "was of a central
significance to their distinctive culture" (para. 137, citing in part R. v. Adams).
19. However, the protection of aboriginal title is not absolute, as the right may be infringed by both federal and
provincial governments. Such infringements may be justified pursuant to the test set out in R. v. Gladstone:
(i) the infringement of the aboriginal right must be in furtherance of a compelling and substantial legislative
objective; and
(ii) the infringement must be consistent with the special fiduciary relationship between the Crown and First
Nations.
20. In Gladstone, the Court set out the reasoning for the limitations placed on aboriginal rights by reference to
a "compelling and substantial legislative objective":
Because...distinctive aboriginal societies exist within, and are part of, a broader social, political and economic
community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives
of compelling and substantial importance to that community as a whole (taking into account the fact that
aboriginal societies are part of that community), some limitation of those rights will be justifiable.Aboriginal
rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of
which they are part: limits placed on those rights are, where the objectives furthered by those limits are of
sufficient importance to the broader community as a whole, equally a necessary part of that
reconciliation(emphasis in original, para. 161).
21. When infringement of an aboriginal right is necessary, the Crown must adhere to its fiduciary duty towards
First Nations. The scope of the fiduciary duty is determined according to the nature of the aboriginal right at
issue and according to the legal and factual context of the appeal. The Court reiterated its position
in Gladstone which altered the notion of priority that was first articulated in Sparrow. The theory underlying
the principle of priority is that the fiduciary relationship between the Crown and aboriginal peoples demands
that aboriginal interests be placed first. The Crown might take into account the existence and importance of
aboriginal rights in allocation resources (para. 162).
22. In the context of aboriginal title, the Court held that justifiable limits on aboriginal rights are a question of
fact determinable on a case by case basis, but include the following:
[T]he development of agriculture, forestry, mining, and hydroelectric 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 those aims...(para. 165).
23. The execution of the Crown's fiduciary duty, specifically with respect to aboriginal title, must be consistent
with the elements of aboriginal title - the "exclusive" use and occupation of land, "the right to choose" how the

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land can be used, subject to the limitation described above, and the "inescapable economic component" of
aboriginal title (para. 166). With respect to the exclusivity aspect of aboriginal title, the notion of priority
entails:
that governments accommodate the participation of aboriginal peoples in the development of the resources of
British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and
mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their
lands (e.g. licensing fees) be somewhat reduced (para. 167).
24. Because aboriginal title entails the right of the First Nation to choose the uses of its land, the Court added
that any infringement of aboriginal title, at minimum, requires consultation:
[T]he fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of
aboriginal peoples in decisions taken with respect to their lands. There is always a duty of
consultation. Whether the aboriginal group has been consulted is relevant to determining whether the
infringement of aboriginal title is justified...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....the minimum acceptable standard is consultation, [which] 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 (emphasis added, para. 168).
25. The Court further added that the economic aspect of aboriginal title requires compensation as justification
of an infringement:
In keeping with the duty of honor and good faith of the Crown, fair compensation will ordinarily be
required when aboriginal title is infringed. The amount of compensation payable will vary with the nature
of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to
which aboriginal interests were accommodated (para. 169).
26. The Court's judgment in Delgamuukw makes it clear that justification will always require consultation and,
ordinarily, compensation for any infringement of an aboriginal right.
E. Provincial Extinguishment Prior to 1982
27. This judgment puts to rest the issue of the ability of the provinces to extinguish aboriginal rights prior to
the Constitution Act, 1982, when section 35 constitutionalized "aboriginal and treaty rights" in Canada. The
Court held that from Confederation to April 17, 1982, only the federal government retained jurisdiction to
extinguish aboriginal rights through section 91(24) of the British North America Act, which grants the federal
government jurisdiction to legislate in relation to "Indians and Lands Reserved for Indians". As such, the
provinces have not possessed the jurisdiction to extinguish aboriginal rights held by First Nations:
[A]lthough on surrender of aboriginal title, the province would take absolute title, jurisdiction to accept
surrenders lies with the federal government. The same can be said of extinguishment - although on
extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to
extinguish lies with the federal government (emphasis added; para. 175).
28. Further, the Court found that provincial governments do not have the jurisdiction to enact laws specifically
in relation to aboriginal rights, including aboriginal title.

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F. The Crown's Duty in Negotiations

29. In its conclusion, the Court encouraged balanced negotiation as a mode of settling the issue of aboriginal
title. Moreover, the Court placed a positive duty upon the Crown with respect to negotiating settlements:
the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith (para.
186).
II. SUMMARY
30. The Delgamuukw case has enunciated essential first principles relating to aboriginal jurisprudence. The
Court placed oral history on an equal footing with historical documentation and underscored the value of oral
history as an independent source of proof. Further, the Court affirmed that aboriginal title is a general interest
in land beyond site specific, activity based rights. Aboriginal title has an economic dimension which includes
mineral and other resource interests. Proof of aboriginal title will be based on occupation of traditional territory
prior to the assertion of European sovereignty (in British Columbia, 1846) and involves exclusive occupation,
although such exclusive occupation may be shared with other aboriginal people.
31. The Court affirmed categorically that aboriginal title is a right entrenched and protected by s. 35 of
the Constitution Act, 1982. Further, it reasoned that infringement of aboriginal title might be justified
according to the tests set out in Sparrow, as modified in Gladstone. However, the Court stated that the
execution of the Crown's fiduciary duty with respect to aboriginal title must recognize its "inescapable
economic component" and requires that the Crown accommodate the participation of aboriginal peoples in the
development of resources in British Columbia. The Court also affirmed the Crown's obligation to consult
aboriginal peoples with respect to their lands, reasoning that in some cases full consent of aboriginal peoples
will be required in relation to resource use on traditional lands. In addition to the requirements of consultation
and, in some cases, consent, the Court underscored that in keeping with the Crown's duty of honour and good
faith, fair compensation to First Nations whose rights have been infringed will ordinarily be required.
32. Finally, the Court found that provincial laws of general application cannot extinguish aboriginal rights. The
Province does not have the constitutional capacity or jurisdiction to legislate specifically in relation to
aboriginal title or other aboriginal rights.

Tsilhqotin Nation v British Columbia,

in a watershed decision released today, the Supreme Court of Canada (SCC) allowed the
Tsilhqotin Nations appeal and, for the first time in Canadian history, granted a declaration of
Aboriginal title. In doing so, the Court confirmed that the doctrine of terra nullius (that no one owned
the land prior to Europeans asserting sovereignty) has never applied to Canada, affirmed the
territorial nature of Aboriginal title, and rejected the legal test advanced by Canada and the
provinces based on small spots or site-specific occupation. The SCC overturned the Court of
Appeals prior ruling that proof of Aboriginal title requires intensive use of definite tracts of land and it
also granted a declaration that British Columbia breached its duty to consult the Tsilhqotin with
regard to its forestry authorizations. This case significantly alters the legal landscape in Canada
relating to land and resource entitlements and their governance.

The SCC definitively concluded that the trial judge was correct in finding that the Tsilhqotin had
established title to 1,750 square kilometres of land, located approximately 100 kilometres southwest
of Williams Lake. The Court reaffirmed and clarified the test it had previously established in

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Delgamuukw for proof of Aboriginal title, underscoring that the three criteria of occupation:
sufficiency, continuity (where present occupation is relied upon), and exclusivity were established by
the evidence in this case.

The SCC reasoned that Aboriginal title was not limited to village sites but also extends to lands that
are used for hunting, fishing, trapping, foraging and other cultural purposes or practices. Aboriginal
title may also extend beyond physically occupied sites, to surrounding lands over which a Nation
has effective control. The SCC endorsed further examples of Aboriginal occupation sufficient to
ground title including warning off trespassers, cutting trees, fishing in tracts of water and
perambulation.

Further, the SCC affirmed the importance not only of the common law perspective but also of the
Aboriginal perspective on title including Aboriginal laws, practices, customs and traditions relating to
indigenous land tenure and use. The principle of occupation, reasoned the SCC, must also reflect
the way of life of Aboriginal people, including those who were nomadic or semi-nomadic.

The SCC reasoned that the criterion of exclusivity may be established by proof of keeping others
out, requiring permission for access to the land, the existence of trespass laws, treaties made with
other Aboriginal groups, or even a lack of challenges to occupancy showing the Nations intention
and capacity to control its lands.

The Court reasoned that Aboriginal title holders have the right to the benefits associated with the
land to use it, enjoy it and profit from its economic development such that the Crown does not
retain a beneficial interest in Aboriginal title land. Expanding on its reasons in Delgamuukw, the SCC
concluded Aboriginal title confers possession and ownership rights including:

the right to decide how the land will be used;

the right to the economic benefits of the land; and

the right to pro-actively use and manage the land.

These are not merely rights of first refusal. Indeed, the Court recommended that governments and
individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title,
can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the
interested Aboriginal group.

The SCC also reasoned that the right to control the land conferred by Aboriginal title means that
governments and others seeking to use the land must obtain the consent of the Aboriginal title
holders. If consent is not provided, the governments only recourse is to establish that the proposed
incursion on the land is justified under s. 35 of theConstitution Act, 1982.

The Court clarified the justification analysis it set out in Sparrow, Gladstone and Delgamuukw. The
Court reasoned that the Crowns burden of demonstrating a compelling and substantial legislative
objective must be considered from the Aboriginal perspective as well as from the perspective of the
broader public in a manner that furthers the goal of reconciliation between the Crown and Aboriginal
peoples. Further, the Crown must also go on to show that the proposed incursion on Aboriginal title
is consistent with the Crowns fiduciary duty towards Aboriginal people. The SCC reasoned that the
Crowns fiduciary duty means that: (1) incursions on Aboriginal title cannot be justified if they would
substantially deprive future generations of the benefit of the land; and (2) the fiduciary duty infuses

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an obligation of proportionality into the justification process that is inherent in the reconciliation
process. Implicit in the Crowns fiduciary duty is the requirement that the infringement be necessary
to achieve the governments goal that the benefits not be outweighed by the adverse effects on the
Aboriginal interest, and that the government go no further than necessary to achieve its goal.

The SCC warned that if governments do not meet their obligations to justify infringements to
Aboriginal title, and do not act consistent with their fiduciary duties, project approvals may be
unraveled, and legislation may fall. The message is that governments that dont justify their actions
act at their peril.

In light of its declaration of Aboriginal title, and based on the Forest Acts definition of Crown timber
and Crown lands not including timber on Aboriginal title lands, the SCC found that the Forest Act did
not apply to the Tsilhqotins Aboriginal title lands. The SCC concluded that the legislature intended
the Forest Act to apply to land under claims for Aboriginal title up to the time title is confirmed by
agreement or court order. However, once Aboriginal title is proven, the beneficial interest in the
land, including its resources, belongs to the Aboriginal title holder.

On the question of whether provinces can legislate in relation to Aboriginal title and rights, or
whether this amounts to an interference with a core area of federal jurisdiction under s. 91(24), the
SCC held that the doctrine of inter-jurisdictional immunity did not apply.

The SCC reasoned that the inter-jurisdictional issue in this case was not one of competing provincial
and federal powers but, rather, of addressing the tension between the rights of Aboriginal title
holders to use their lands as they choose, and the authority of the Province to regulate land use. The
SCC concluded that the guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982 operates
as a limit on both federal and provincial legislative powers; therefore, the proper way to curtail
interferences with Aboriginal rights and to ensure respect from Crown governments, is to require that
all infringements, both federal and provincial, are justified.

This case provides First Nations with significantly improved opportunities to advance their Aboriginal
title and rights in a manner that reflects their vision, values and perspectives. The SCCs decision
essentially requires that the Crown and industry meaningfully engage with Aboriginal title holders
when proposing to make decisions or conduct business on their territories. This engagement can no
longer be limited to small spots but must be achieved with a view to tangibly addressing the
incidents of title affirmed by this case; namely, the right of enjoyment and occupancy of title land; the
right to possess title land; the right to economic benefits of title land; and the right to pro-actively use
and manage title land. In this light, as the Court emphasized at para. 97 of its decision, the Crown
and industry would be well advised to avoid a charge of infringement or failure to adequately consult
by obtaining the consent of the interested Aboriginal group.

Pragmatically speaking, this case provides sound guidance for effective and balanced consultation
and accommodation discussions regarding decisions taken on Indigenous lands. The principles and
laws affirmed in this case, once honoured and implemented, ought to re-invigorate negotiations in
relation to the outstanding land question in British Columbia. Opportunities abound.

Tsilhqotin Nation v British Columbia,

Now, for the first time in history, the Court has formally declared Aboriginal title to exist in a specified area
of British Columbia historically occupied by the Tsilhqot'in people.

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The ruling ends a complex and protracted legal journey which began in 1998 when the Tsilhqot'in Nation
objected to British Columbia issuing third party logging authorizations in their traditional territory in the
Chilcotin region of British Columbia.

Key findings

The Court has confirmed that Aboriginal title can exist over relatively broad areas of land that
were subject to occupation at the time sovereignty was asserted. The term "occupation" means
regular and exclusive use of land and is not necessarily limited to village sites.

With the exception of clarifying what is required to establish occupation, the decision does not
make significant changes to the law of Aboriginal title as it has come to exist over the last several
decades.

The decision makes clear that provincial laws apply on lands for which Aboriginal title is claimed
or proven.

In keeping with well-established law, federal and provincial governments continue to have a duty
to consult and potentially accommodate in cases where Aboriginal title is asserted but not yet
proven.

Governments can infringe proven Aboriginal title, provided they meet the established tests for
"justification"

Summary of the Supreme Court of Canada's decision

The Supreme Court of Canada held that the appeal should be allowed and that a declaration of
Aboriginal title should be granted for the area that the BC Supreme Court had so found. When
considering what evidence meets the legal test for occupation, the Court must look to the
Aboriginal culture and practices in a culturally-sensitive manner. In this case, key factual
findings included that, historically, the Tsilhqot'in people actively repelled others from their
lands, demanded permission from others to access the land and had treated the lands as
exclusively under their control.

The Court also declared that British Columbia had breached its duty to consult with the
Tsilhqot'in in connection with the various authorizations it issued to third parties under the
Forestry Act.

Finally, the Court stated that provincial laws of general application will continue to apply to
Aboriginal title lands, subject to government meeting a "justification" test.

The justification test is consistent with prior cases and has three parts that must be met.
1. Did the government discharge its procedural duty to consult and accommodate;

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2. Were the government's actions backed by a compelling and substantial objective; and

3. Is the governmental action consistent with the Crown's fiduciary obligation to the group.

The Court also referenced its previous ruling inDelgamuukw3 and said:

"What interests are potentially capable of justifying an incursion on Aboriginal title? In Delgamuukw, this
Court, per Lamer C.J., offered this:

In the wake of Gladstone, the range of legislative objectives that can justify the infringement of
[A]boriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior
occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty, which
entails the recognition that "distinctive [A]boriginal societies exist within, and are a part of, a broader
social, political and economic community" (at para. 73). In my opinion, the development of agriculture,
forestry, mining, and hydroelectric 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 those aims, are the kinds of objectives that are consistent
with this purpose and, in principle, can justify the infringement of [A]boriginal title. Whether a particular
measure or government act can be explained by reference to one of those objectives, however, is
ultimately a question of fact that will have to be examined on a case-by-case basis."4

Commentary

Much has been said, and will continue to be said, about the historic nature of this case. While there is no
question that it is a significant decision, it is equally important to note that most of the Court's findings
simply summarize or restate holdings in previous decisions, all of which have been part of the
development of the law of Aboriginal title over the last decades.

First and foremost, the decision confirms the existing jurisprudence on the test for establishing Aboriginal
title and the nature of it. It requires exclusive occupation by Aboriginal groups at the time Canadian
sovereignty was asserted. While the additional guidance that the Court provides in determining what is
sufficient "occupation" at the time of sovereignty is important, the Court specifically notes its findings are
consistent with its prior decisions: "In fact, this Court in Marshall; Bernard did not reject a territorial
approach, but held only (at para. 72) that there must be "proof of sufficiently regular and exclusive use" of
the land in question, a requirement established inDelgamuukw." (para 43)

And while the area of land over which title was found is not insignificant, it is also important to note that it
represents only approximately 2% of the Tsilhqot'in traditional territory.

The Court also comments extensively on the nature of Aboriginal title, and other related principles such
as the inherent limitation that Aboriginal groups not use title lands in a manner that is inconsistent with
enjoyment by future generations. It also comments extensively on the test by which infringement of
Aboriginal title can be "justified". But again, all of these findings are based on the Court's prior decisions
and do not represent any major changes in the law.

There are a few passing comments from the Court that will surely be the subject of further discussion in
future litigation. For example, the Court makes a brief statement at paragraph 92 to say that projects
might need to be cancelled if they begin without Aboriginal consent, title is later proven and continuing the
project would be "unjustifiably infringing". Similarly, the Court states at paragraph 86 that "incursions on

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Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of
the land".

Provincial jurisdiction over title lands

The one area where this decision does represent a significant change in the law is that, for the first time,
the Supreme Court of Canada clearly states that provincial legislation can apply to lands that are subject
to Aboriginal title. While the application of such legislation will be dependent on meeting the justification
analysis, there are no inherent limits from a federal/provincial division of powers perspective that prevent
the provincial government from legislating over Aboriginal title lands. By holding that the well-established
constitutional doctrine of "interjurisdictional immunity" has no potential application in these circumstances,
the Court has eliminated one of the key clouds of uncertainty that existed after the decisions below. Now
governments will have to carefully consider how to tailor legislation to ensure that its application on
Aboriginal title lands happens only in a manner that will be considered "justified". While there will no doubt
be challenges in doing so, this is, from a constitutional perspective, a good problem for provincial
governments to have.

Conclusion

The Tsilhqot'in decision is historic and groundbreaking in the sense that it is the first time Aboriginal title
has been declared under a framework that has been in existence for decades. But in many respects the
decision simply adopts and applies existing jurisprudence and does not represent a substantial change in
the law of Aboriginal title. It does however provide clarification on what constitutes "occupation" for title
purposes, as well as confirmation that provincial laws continue to apply to Aboriginal title lands, subject to
justification requirements. Such clarity is essential to promote reconciliation efforts and the continued
governance of Canada and British Columbia.

Case Brief - Tsilhqotin Nation v. British Columbia,

2014 SCC 44
June 27, 2014 at 9:26am

Tsilhqotin represents the first court declaration of Aboriginal title for a First Nation in Canada. Its
significance ranks on par with the Supreme Courts previous decisions inCalder and Delgamuukw.

Fundamentally, the Supreme Court of Canadas decision overturns the Court of Appeals narrow
view of Aboriginal title being limited to instances of intensive, site-specific occupation and restores
the trial judges view that Aboriginal title exists on a territorial basis.[1] The Supreme Court does so
by carefully elucidating the test to establish Aboriginal title and synthesising its jurisprudence into
one, coherent framework. It re-states the test for Aboriginal title, the nature of the rights Aboriginal
title confers, and whether provincial laws apply to Aboriginal title land.

1. The Test for Aboriginal Title

To ground Aboriginal title, occupation prior to the assertion of European sovereignty must possess
three characteristics: it must be sufficient; it must be continuous (where present occupation is relied
on as proof of past occupation) and it must be exclusive.[2] To establish sufficiency of occupation,
the court must take a context specific inquiry that considers not only the characteristics of the
Aboriginal group and their perspective (i.e. laws, practices, customs and traditions) but also the

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character of the land over which title is asserted.[3] For continuity between present and pre-
sovereignty occupation, an unbroken chain of occupation is not required; instead the present
occupation must be rooted in pre-sovereignty times.[4] For exclusivity, the court uses the notion of
whether the Aboriginal group exercised effective control over the land.[5] This is a much broader
view of Aboriginal title than that articulated by the Court of Appeal and is more in accord with
international norms a nation does not have to occupy every square metre of its territory so long as
it can exercise effective control over the lands within its territorial boundaries.

2. The Legal Characterization of Aboriginal Title

Aboriginal title is a beneficial interest in land, being the right to use and manage it, enjoy it, occupy it,
possess it, and profit from its economic development.[6] Because it is held communally, it cannot be
used in ways that would prevent future generations from using and enjoying it. Some changes
even permanent changes to the land may be possible.[7] The right to control Aboriginal title land
means governments must obtain the consent of the title holders to use the land.[8] Aboriginal title is
not merely a right of first refusal with respect to Crown land management rather it is a right to
proactively use and manage the land.[9]

The court also defines what remains of the underlying Crown title: a fiduciary duty owed by the
Crown when dealing with Aboriginal lands and a right to encroach on Aboriginal title if the Crown can
justify this in the broader public interest under section 35 of the Constitution Act, 1982.[10] To justify
encroaching on Aboriginal title, the government must show (i) that it discharged its procedural duty
to consult and accommodate, (ii) that such encroachment is pursuant to a compelling and
substantive objective and (iii) the encroachment is nonetheless consistent with the Crowns fiduciary
duty.[11]

Even where the Crown consults about, and has a compelling, substantive objective with respect to,
the encroachment or incursion on Aboriginal title, it still has to show that such incursion is consistent
with the Crowns fiduciary duty[12] such that the future generations of the Aboriginal groups are not
substantially deprived of the benefits of the land.[13] The fiduciary duty imports an obligation of
proportionality: is there a rational connection between the governments goal and the adverse
impacts? is there minimal impairment of the Aboriginal interest? is there a proportionality of impact
(i.e. do the benefits of the government action outweigh the adverse impacts on the Aboriginal
interest)?[14] On this point the law since Delgamuukw has required that the justification test
from Sparrow applied to Aboriginal rights including Aboriginal title in Tsilhqotin the court has made
this explicit.

3. Provincial Laws on Aboriginal Title Lands

The provinces current Forest Act, as a matter of statutory interpretation, was intended to apply to
lands subject to Aboriginal title claims[15] up to the time title is confirmed by agreement or court
order. Once Aboriginal title is so confirmed, the lands are vested in the Aboriginal group and the
lands are no longer Crown lands.[16] Given the declaration ordered by the court, the timber on the
Tsilhqotin lands no longer falls within the definition of Crown timber and the Forest Act no longer
applies.[17] This conclusion, while pragmatic, is disturbing because it may have the effect of

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eliminating any claim for damages that a group holding Aboriginal title would otherwise have for
Crown-authorized activities on the lands without the consent of that group prior to the court
declaration.

Section 35 is also to be used to assess whether future provincial legislation applies to Aboriginal title
lands. Is the legislation unreasonable, does it impose undue hardship and does it deny the
Aboriginal title holders their preferred means of exercising their right? [18] General legislation that
assigns Aboriginal property rights to third parties likely will result in a meaningful diminution of the
Aboriginal interest that will result in an infringement unless there is consent or justification.[19]

Section 35 imposes limits on how both the federal and provincial governments can deal with
Aboriginal title lands. Neither level of government is permitted to legislate in a way that results in a
meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the
broader public interest and is consistent with the Crowns fiduciary duty owed to the Aboriginal
group. Aboriginal rights are thus a limit on both federal and provincial jurisdiction. There is no role
left for the constitutional doctrine of interjurisdictional immunity to play.[20]

As a result, the court expressly overturned its previous decision in Morris, to the extent that it stood
for the proposition that provincial governments are categorically barred from regulating the exercise
of Aboriginal rights.[21] Instead, provincial laws of general application, including the Forest Act,
apply to Aboriginal title lands unless those provincial laws are unreasonable, impose a hardship or
deny the title holders their preferred means of exercising their rights, and such restrictions cannot be
justified pursuant to the Sparrowjustification framework. [22]

This article examines these aspects of Justice Vickers'judgment and suggests more specific ways in which
Aboriginal title and thirdparty interests might be reconciled through the process of negotiation. It
proposes a context-based approach that seeks to redress the historical injustice of the wrongful taking
ofAboriginal lands, without disregarding the current interests of innocent third parties. The monetary
costs of reconciliation, it is argued, should be borne by the real wrongdoers, namely the provincial and
Canadian governments.

In sum, the crux of Justice Vickers' dilemma was that a declaration of the Tsilhqot'in people's title would
have satisfied Professor Slattery's "principles of recognition" of historical rights, but not the requirement
in Slattery's "principles of reconciliation" that the interests of third parties and of broader Canadian
society be taken into account.3 In Justice Vickers' view, that aspect of reconciliation had to be attained
through genuine negotiations. As I have said, I think this was the underlying reason for his refusal to
issue a declaration of Aboriginal title.

Justice Vickers' conclusion that the doctrine of interjurisdictional immunity protects Aboriginal title from
provincial infringements that go to the core of Indianness, as well as from provincial extinguishment,
must be correct.

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and threw the matter back to the parties to negotiate an honourable settlement that would take into
account the competing interests of the Aboriginal titleholders, third parties and the broader Canadian
public.

Justice Vickers - His message to the federal and provincial governments is clear: negotiate Aboriginal
title claims in an honourable way that, in Brian Slattery's words, involves "the full and unstinting
recognition of the historical reality of aboriginal title, the true scope and effects of Indigenous
dispossession, and the continuing links between an Indigenous people and its traditional lands," while
taking into account other relevant factors, especially "third party and public interests."73

Justice Vickers deserves credit for his forthright decision and his refusal to refashion Canadian law to
deny the existence of Aboriginal title where it comes into conflict with other interests, including third-
party interests.74 His judgment shows that, as a matter of law, Aboriginal title ought to prevail over
provincially created interests that are inconsistent with it, but, as a matter of reconciliation,
compromises will have to be reached through honourable negotiations. So how should third-party
interests be dealt with in the negotiations between First Nations and the federal and provincial
governments? Even though these interests are probably invalid for the legal and constitutional reasons
Justice Vickers has outlined, reconciliation would not be achieved if they were ignored. Worse still,
ignoring them could have dire political consequences for the federal and provincial governments, and
could push nonAboriginal property holders in British Columbia into open confrontation with First
Nations. And why, one may ask, should those property holders be the ones to pay the price for the
failures of governments to discharge their consti-tutional obligations?

acceptance of Justice Vickers' conclusion, which is firmly rooted in Canadian constitutional law, that the
creation of such interests by British Columbia could not have extinguished Aboriginal title. Moreover, it
follows from his analysis of the doctrine of interjurisdictional immunity and of supporting Supreme
Court of Canada decisions that any substantial provincial interference with the Aboriginal titleholders'
exclusive rights of possession and use of their lands would also be unconstitutional, and so even the
creation of limited interests such as logging and mining rights would be invalid. In situations where
resource extraction rights have been wrongfully granted by the province, one solution would be for the
province to acknowledge the invalidity of these rights and pay compensation for having wrongly granted
them.76 The Aboriginal titleholders would be entitled to compensation for loss of use and damage to
their land,77 and the grantees might be entitled to compensation for losses caused by the invalidation
of their interests. Alternatively, the Aboriginal titleholders might agree that, if compensation for past
violation of their rights was paid by the province, they would allow the resource extraction to continue
on their own terms.78 Such an agreement could include an Aboriginal management role and share of
the profits, along with other benefits such as employment for community members. Thus, resource
extraction would not necessarily cease on Aboriginal title lands, but in future would be subject to
control by the Aboriginal titleholders79 who would benefit rather than sufferfrom it. Of course, the
appropriate solution would depend on the circumstances and would be the product of negotiations

Whatever the legal position, some people may balk at the financial cost of compensating Aboriginal
titleholders for wrongful taking of their lands. But when privately held lands are expropriated by

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governments, fair compensation is paid out of the public purse.89 Why should Aboriginal peoples be
treated any differently?

R v Marshall; R v Bernard
Facts Edit
35 Mikmaq Indians were charged with cutting timber on Crown lands in
Nova Scotia without authorization. The accused argued that as Mikmaq
Indians, they were not required to obtain provincial authorization to log
because they have a right to log on Crown lands for commercial purposes
pursuant to treaty or aboriginal title. The trial court entered convictions
which were overturned by the Court of Appeal.
Issue Edit
Do the Peace and Friendship Treaties give aboriginals a treaty right to log
on Crown lands without permission, contrary to provincial
regulations?
What is the correct test for occupancy that is needed when determining if
aboriginal title exists?
Reasons Edit
Treaty rights Edit
The majority finds that the Treaties do not grant this right, and therefore the
appeal must be allowed and the convictions restored. The Mi'kmaq tried to
argue that these rights progressed from the "truckhouse" clause of the
treaties similarly to the right to fish in Marshall. To address this, the Court
states that there must be evidence that a similar practice to logging for
trade was done at the time the treaties were created. They find no evidence
that this was the case, and therefore the treaty did not protect the right.
The treaty gave the Mi'kmaq the right to continue their trading activities as
they were established in 1760. Obviously, the rights protected were not
frozen in time, thus if the Aboriginals traded logs in 1760 then this practice
would likely be allowed today as a modern evolution of the practice.
However, because there was no logging trade in 1760, the practices of the
accused were not modern development of a treaty right, and were not
protected at all. The proper test to employ when considering if a treaty
trade right exists is to ask if the aboriginal people participated in a trade
that can be said to be the precursor to the modern practice at the time the
treaty was signed.
Aboriginal title Edit

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In the Nova Scotia Court of Appeal, Cromwell held that the trial judge's test
for occupancy was too strict, as it did not allow for the nomadic lifestyle of
the Mi'kmaq's to be considered. The trial judge's test was that they must
have established a "regular use of a defined piece of land". Therefore, such
things as a settlement would satisfy the test. However, the respondents did
not regularly occupy the land, and therefore they failed this test. Cromwell's
test took the nomadic lifestyle into effect, and set a lower threshold of
"occasional entry on the land and acts from which an intent to occupy can
be inferred". He found that the respondents met this standard, and
therefore should be given good title.
McLachlin, writing for the majority, does not agree with Cromwell's lower
threshold. She applies the test laid out in Delgamuukw, but in the end they
rely on the trial judge's stricter threshold for occupancy. The defendants did
not possess a treaty or permit to the lands concerned, and had not
occupied them to the extent necessary to establish aboriginal title. They
also discuss that in some cases where aboriginal title is not found,
permission to use the land for agricultural or traditional reasons may be
permitted, but this is not the case here. They put lots of emphasis on trying
to balance the common law and aboriginal law, however it seems that the
common law wins out in this case.
Ratio Edit
When asking if a treaty that guaranteed trade rights protects a particular
trade, you must ask if the aboriginal people participated in a trade
that can be said to be the precursor to the modern practice at the
time the treaty was signed; if they did not, then there is no treaty
protection of the trade because neither party considered it when the
treaty was signed.
In order to be deemed to "occupy" lands to a satisfactory extent of being
able to claim aboriginal title to them, one must establish that they regularly
use a defined piece of land for a certain purpose.

R v Marshall; R v Bernard, [2005] 2 SCR 220, 2005 SCC 43 (Link)

Issue(s):
Whether the treaties from Marshall I and II grant right to log commercially? If
not, was the land surrendered under the friendship treaty and can they claim
aboriginal title?
Ratio:
Treaty confers rights for trade, but this applies only to items traded in 1760-

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1761.
Analysis:
Commercial logging was not what they were doing back in the day. There was
no trade of lumber, only the practice of gathering it. Trade was fishing, this is
logging. This was never a treaty right. First time that the test for Delgamuukw
is applied to actual facts: Mikmaq cant meet it as they were nomadic people.
Holding:
No, the treaties do not apply to logging. And no, there is no aboriginal title.
R v Marshall; R v Bernard
Facts: Members of Mi'kmaq First Nations were logging on
Crown land without permit. They asserted that they were
entitled to log for commercial purposes because they had a
treaty right stemming from the Peace and Friendship Treaties of
1760. To establish that treaty right, it must be proven that the
practice formed the basis of the traditional culture and identity
of the Mi'kmaq.
Analysis:
- discussion of how to consider both Aboriginal and common
law perspectives in determining whether a right exists
- Majority (McLachlin, C.J.): Look at pre-sovereignty
Aboriginal practices and land use and translate that as faithfully
as possible into a modern right
Dissent (LeBel): give more weight to Aboriginal perspectives -
look at Aboriginal systems of law that existed pre-sovereignty
Decision: no treaty right to logging. Logging did not form the
basis of the Mi'kmaqs' identity and culture.

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3. Sources of Canadian Law:

1. The Common Law and Civil Law Traditions

Reception of European Law

Bijuralism

Common Law Method: Precedent and Equity

2. Statutory Law

3. International Law

Parliament of Canada = Queen, Senate (upper house) and House of Commons.

parliamentary privileges are those rights necessary to ensure that legislatures can perform
their functions, free from interference by the Crown and the courts. includes parliaments
power to establish rules of procedure for itself and to enforce them without external
interference.

Parliamentary supremacy has the the jurisdiction to make or unmake any law whatever
parliament is restricted through federalsm (what the provinces have jurisdiciton over and
charter of rights and freedoms) as long as Parlimanet falls within these constitutional bounds
parliament is free to make laws

Bijuralism is defined as the coexistence of two legal traditions within a single

state. Since the common law and civil law coexist in Canada in both official
languages, Canada is said to be a bijural country.

'Bijuralism in Canada' means the coexistence of the English common law and
French civil law traditions within a federal state.
Canada is said to be a bijural country because civil law is the common law of
Quebec and common law that of the rest of Canada. However, Federal law is also
a mixed law since its development, interpretation and application are based on
the common law of each province.
It is in this context that in June 1995, the Department of Justice adopted a policy
on legislative bijuralism in which it undertakes, whenever a federal bill or
regulation concerns provincial or territorial private law, to draft each of the two
versions of that legislation in a way that reflects the terminology, concepts and

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institutions specific to the two Canadian systems of private law. The Policy on
Legislative Bijuralism62 thus acknowledges that the four Canadian audiences
common law Anglophones, civil law Anglophones, common law Francophones
and civil law Francophonesmust be able to read federal legislation in the official
language of their choice and find its terminology and phrasing consistent with the
legal system in effect in their province or territory. The Department of Justice
Canada is thus an organization that believes in bijuralism and its advantages, as
attested to by its modernization work. The putting into effect of bijuralism by the
Department of Canadian Bijuralism has no counterpart or precedent in the world,
linked as it is to Canadian legal history

Grimard v. The Queen [2009] (FCA)

FACTS: Taxpayer was medical resident residing in Sherbrooke. He worked under
contract in Montreal for 3 years as a medical assessor for an administrative tribunal.
He rented an apartment for use as an office while continuing to reside in Sherbrooke.
He included his income from this contract as professional income and deducted rental
and travel expenses.

ISSUE: Was it a contract of employment or of enterprise?

REASONING: 1425 CCQ: Common intention of the parties shall be sought in

interpreting a contract.

2085 CCQ: K of employment under the direction or control of another person.

2098 CCQ: K of enterprise undertakes to carry out physical or intellectual work for
another person, the client or to provide a service, for a price which the client binds
himself to pay.

2099 CCQ: Contractor is free to choose the means of performing the contract and no
relationship of subordination exists between the contractor and the client.

S. 8.1 of the Interpretation Act allows for the CVL to be referred to. But the CVL and
the CML are not antonymous in any event.

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The CVL lists the required elements for a contract of employment or enterprise,
whereas the CML lists relevant factors. 2085 requires direction or control for a K of
employment. 2099 requires an absence of subordination for a K of enterprise. 2099
requires an absence of control and the free choice of the contractor as to the means for
completing the work. 1425 says that Courts should refer to the intention of the parties.

CML factors are not useless in determination of a contract in Quebec. The notion of
control is essential in the CVL, it is important also in the CML. The idea of profit/loss
is similar in both systems. Ownership of tools can also be useful. In both systems, no
one factor is determinative. In determining whether subordination exists, there is
nothing wrong with Quebec courts referring to the CML factors.

Here, the contract was silent as to the intention of the parties. Different clauses have
different connotations. Nevertheless, the nomenclature of the contract is not
determinative in any way. What is important is genuine nature (principe de realite) of
the contract.

The tribunal had a right of control over the taxpayer. There was a link of
subordination. All the necessary tools were furnished by the tribunal. There were no
risks of loss for the taxpayer.

HOLDING: Taxpayer was an employee.

This chapter argues that a functional theory of equity of equity as a safety valve aimed at
countering opportunism captures the character of fiduciary law. Fiduciary relationships, in
which someone undertakes to act on anothers behalf by using discretion, carry more than the
usual potential for opportunism. In the equitable solutions to opportunism based on proxies and
presumptions, fiduciary law gets its main features. Like equity but in a more sweeping and
often more categorical way, fiduciary law sets the presumption against the fiduciary when
certain proxies are triggered. Thus, in situations of undisclosed conflict of interest the
presumption of opportunism arises even without regard to the substance of the deal. For self-
dealing likewise the presumption arises in an almost indefeasible way. Like equity generally,
fiduciary law features a constrained residuum of open-endedness to deal with new and creative
ways of being opportunistic. The theory of equity as targeting potential opportunism unifies the
best aspects of traditional and modern theories of fiduciary law, and helps explain why fiduciary
law has become so disparate and contested after the fusion of law and equity.

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4. Fundamental Principles of the Canadian Legal System:

1. The Constitution of Canada
2. Principles Underpinning Public Law
Rule of Law
Constitutional Supremacy
Parliamentary Sovereignty
Federalism
Separation of Powers
Judicial Independence (Overview)
3. Constitutional Amendment

the executive branch refers to those institutions in government that are responsible for
implementing and enforcing laws, whether those laws are formulated by the legislature or, in the
case of the common law, by the judiciary.

civil servants are politically neutral

subsidiarity the proposition that law-making and implementation are often best achieved at a
level of government that is not only effective , but also closest to the citizens affected and thus
most responsive to their needs, to local distinctiveness and to population diversity.

Executive authority flows from statutory delegation and the royal prerogative

Royal prerogative powers are residual in the sense that historiclly the power of the Crown pre-
existed that of the legislature and as a result prerogative powers are those powers that have
remained with the Crown.

Singh v. Canada (AG)

Facts Edit
The appellants were all convention refugee claimants landed in Canada.
The Minister, on the advice of the Refugee Status Committee, had
determined they were not convention refugees. The appellants all applied
to the Immigration Appeal Board for a redetermination hearing, however
they were not referred for an oral hearing as the board determined based
on the materials submitted that there were no grounds on which they could
establish their claims.
The appellants applied to the Federal Court of Appeal for review, alleging a
violation of s. 7. The Court dismissed the applications, and they appealed
to the Supreme Court.
Issue Edit
How do you determine whether an individual is entitled to an oral

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hearing?
Decision Edit
Appeals allowed
Reasons Edit
Wilson - writing for herself, the Chief Justice, and Justice Lamer - found it
was clear that the statute did not intend for refugee status applicants to be
entitled to an oral hearing. Thus, in order for the appellants to succeed, the
court must find that s. 7 overrides this section.
The first concern was the threshold issue; was s. 7 engaged? This was
easily passed; everyone physically present in Canada is entitled to Charter
protection. Although Singh had no constitutional right to remain in Canada,
he had the right to have his claim determined in accordance with the
principles of fundamental justice.
She determines that Singh and the other applicants were entitled to oral
hearings, primarily on the basis that the Minister's determination depended
significantly upon the applicants' credibility, which cannot be easily
assessed (or assessed at all) through written submissions, stating:

I find it difficult to conceive of a situation in which compliance with

fundamental justice could be achieved by a tribunal making significant
findings of credibility solely on the basis of written submissions.

This violated principles of fundamental justice, and thus s. 7.

Willson states that resort to the Charter should be reserved for cases in
which ordinary statutory interpretation cannot provide a remedy. Here, the
principles of fundamental justice in the context of determining refugee
status require an oral hearing, and the statute itself expressly barred some
refugee claimants from receiving such a hearing. She also held that a
balance of administrative convenience does not override the need to
adhere to principles of fundamental justice.
Beetz, concurring in the result, based his finding on s. 2(e) of the Bill of
Rights rather than the Charter.
Ratio Edit
Where serious issues of credibility are involved, fundamental justice
requires that credibility be determined on the basis of an oral hearing.
Issues of credibility are almost always at stake in determining refugee
status.

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Administrative convenience does not override the need to adhere to the

principles of fundamental justice.

Singh v. Canada (Minister of Employment and Immigration) [1985]

case that revives CBR
Facts: appellants were convention refugee claimants, landed in Canada; minister, on advice from
Refugee Status Advisory Committee, determined that they werent convention refugees, and they all
applied to Immigration Appeal Board for re-determination of their status. They didnt get oral
hearing b/c board said that based on their written application, no reasonable grounds to believe
that could establish their claims at a hearing. They applied to FCA for review of IAB decision, on
grounds that statutory scheme infringed s. 7 of Canadian Charter of Rights and Freedoms.
Applications failed and they got leave to appeal to SCC, which, after hearing their oral argument,
directed the parties to make submissions on whether scheme complied w/ 2 e) of CBR.

Here, hearing was at discretion of board, their applications were not referred to an oral
hearing because the board determined on the strength of the material submitted by the applicants
that there were no reasonable grounds for believing that they could establish their claims at a
hearing.

2) The IAB has discretion under s. 71 of the Immigration Act to allow a re-determination hearing,
which is quasi-judicial and to which full natural justice would apply, but its not empowered by
statute to allow such a hearing in every caseonly where it has reasonable grounds to
believe that a claim could be established on a hearing.

Wilsons Analysis:
Wilson finds violation of s 7 of Charter, on basis that claimants denied fair opportunity to present
claims or know case to meet, as required for their fundamental rights, which they are otherwise
deprived of
Wilson asks whether claims process corresponded w/statute, and found that statutory
procedure properly followed (218)
o Did not find sufficient ambiguity in statute to use the CL to read in a duty of
Procedural Fairness; it would be disingenuous to claim that there was an implicit
intention by parliament (courts [cant] import the duty of procedural fairness
constraints on the Committees operation which are incompatible w/the decision-
making scheme set up by Parliament p 218). Parliament was clear on its process
She applies Charter, s. 7, and looks at protection in Charter for everyone which includes every
human being who is physically present in Canada (Doesnt apply to refugee claimant who is abroad),
and therefore amenable to Canadian law
Has right to life, liberty, security of person been implicated (by inability to have a
hearing)?
(The AG took a narrow view, (in attempt to move out of admin contextI guess to limit to criminal
context) and argued single right theory; that such right limited to narrow range of cases in which
consequences are death, arrest, detention, physical liberty, and punishment.)
o Wilson said that determination of refugee claimants status implicates this right,
even if narrowly defined; under Immigration Act, refugee claimant has right to have
claim determined by minister, and without such a hearing, a right not to be returned
to place where theres a threat to his life/liberty/security. Claimant also has right to
appeal.

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o To deprive him of avenues open under act to escape that fear of persecution must at
least impair his right to life, liberty, security of person (p 221)
o Wilson analyses distinction b/n rights and privileges; if you adopt a narrow reading,
it could be a basis for excluding refugee claimants from Bill of Rights. The claimant
doesnt have a right, but a privilege to be in Canadathis is why she relies on the
Charter, rather than the CBR. If this dichotomy in BCR applicable here, it is not
applicable under s. 7 of Charter
o She relies on political background whereby the restrictive attitude in applying CBR
not applied in interpreting Charter, so she wont apply the distinction b/n rights and
privileges
She looks at content of duty of PF, as subsumed under the concept of fundamental justicethe
tribunal which adjudicates on his rights must act fairly, in good faith, w/out bias, in a judicial tempe,
and must give adequate opportunity for state his case (223):
In this case, insufficient to only give them a hearing at the first stage. Not necessary to have
oral hearing in all cases where s 7 rights have been deprived; in some cases, state might be
able to deprive individual of that right, and still be in accordance w/these principles, by
allowing written submissions; however, in some contexts, require full oral hearing to be
procedurally fair to individual.
o Where a serious issue of credibility involvedi.e. credibility of story of claimant
fundamental justice requires that credibility be determined on basis of oral hearing
Shes hard pressed to think of circumstance where credibility at issue, and
written submission ok
It was a broader concern than an issue of oral submissions; her concern was
w/the inadequacy of the opportunity the scheme provides for a refugee
claimant to state his case and know the case he has to meet
o The IAB is given a determination by the Minister that applicant isnt a Convention
refugee, based in part on info the applicant cant
o Although applicant can submit whatever relevant materials he wants to the board,
he still has to show on a balance of probabilities that Minister was wrong, yet
doesnt know, beyond the basic reasons the minister decides to provide in rejecting
his claim, what the case to meet is
o As a matter of fundamental justice, a claimant should be entitled to discover the
Ministers case prior to the appeal hearing
Even though some info may be subject to Crown privilege, the court should
be in a place to decide whether asserted privilege is overbroad
o Most claimants wont even have the chance to challenge, b/c the IAB is required to
reject application for re-determination unless it thinks that its more likely than not
that applicant will be able to succeed
o Procedures for determination of refugee status claims as set out in the Immigration
Act, 1976 do not accord refugee claimants fundamental justice in the adjudication of
those claims and are thus incompatible with s. 7 of the Charter
o Fails under s. 1: the AG argued that IAB would be overwhelmed, but Wilson said that
admin convenience is not enough to save violation under s. 1it doesnt fall w/in
reasonable limits
Beetzs analysis
Beetz allows appeal on grounds of violation of 2 e of CBR, but decline to express view on
Charter
o Did process involve determination of rights and obligations of claimants?
AG conceded that it does

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o In determination of these rights, were claimants afforded fair hearing in accordance

w/principles of fundamental justice?
Beetz says no. The individuals have been heard, but only before an
official, who has nothing to say about the actual decision. Theyre not
heard by minister or advisory committee, or IAB (if their claim didnt
go through)
In light of the severity of the consequences, there must be a full oral
hearing
Held: Court unanimous in allowing appeal, but on different grounds. Application remanded to IAB
on condition that it hold a hearing.Wilson (for 3 judges) finds violation of s. 7 Charter, not justified
by s. 1 (the procedures for determination of refugee status claims as set out in the Immigration Act,
1976 do not accord refugee claimants fundamental justice in the adjudication of those claims and are
thus incompatible with s. 7 of the Charter) and Beetz (for 3) finds violation of s 2 e of CRB. Beetz:
violates CBR as not in accordance w/principles of fundamental justice.
There was reorganization of stat scheme, so claimants entitled to hearing before deported

Singh:
SCC concluded that, notwithstanding the Charter, the Bill of Rights would continue to offer
overlapping but distinct protections.

SINGH V. CANADA (MINSTRY OF EMPLOYMENT AND IMMIGRATION)

PFJ includes PF but does not constitutionalise it per se; where serious issues of
credibility involved PFJ require credibility be determined on basis of oral hearing
Facts:

Appellants were Convention Refugee claimants; Minister, on the advice of RSAC determined they

were not refugees; they applied to IAB for redetermination hearing. IAB however held there were no

reasonable grounds to believe their claims could be established at a redetermination hearing and

they were thus found not to be refugees w/out an oral hearing having been held by either the RSAC

90

Administrative Law Process

or IAB. Appellants bring JR application to FCA challenging validity of process arguing it violates

s.7 rights. FCA dismissed applications and they appeal to SCC.

Key point: a claim for refugee status could be determined against applicant w/out opportunity for an

oral hearing by d/maker at any stage of the process and w/out applicant having opportunity to both

know the case against him and to respond to that case.

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Issue:
Did the claims determination process violate s. 7 of the Charter?

Note: after oral argument SCC also asked for written submissions re: whether the process was consistent
with s. 2(e) of CBR.

Held:
Charter infringed; CBR s. 2(e) infringed.

Analysis:

1. Reasoning: Wilson J (3)

o Because the statutory scheme excluded the possibility of oral hearing in these cases,
CL of PF could not supply the omission of the legislature; there was no omission bur rather
clear exclusion
o Thus in order for complainants to succeed, court had to find that s. 7 overrides the
statut
Held: Charter infringed

Framework for analysis of s.7 challenge:

1. 1) 1. Is s. 7 engaged? Does admin decision deprive (or threaten to deprive) an individual of his/her

interests in life, liberty or security of the person? (as those concepts have been understood in SCC
jurisprudence)

YES: everyone in Canada is entitled to Charter protectionWilson J decides that

Everyone means everyone physically in Canada and security of the person includes freedom from state
imposed threats of physical punishment or suffering as well as the imposition of such punishment or
suffering - this threat existed here

Although Singh had no constitutional right to remain in Canada, he had the right to have his
claim determined in accordance with the principles of fundamental justice
2. 2) If yes, is the deprivation in accordance with POFJs? no: shouldve been an oral hearing

(a) procedurally: ie, are procedures by which deprivation can occur in accordance with

procedures required by POFJ?

Wilson said POFJ = procedural fairness

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Administrative Law Process

In this case, convention refugees didnt have fair opportunity to refute case against them b/c
didnt know what happened at RSAC stage - greatest concern about this procedural scheme
Determination depended significantly on credibility which cannot be easily assessed through
written submissionsrequires oral hearing: I find it difficult to conceive of a situation in which
compliance with fundamental justice could be achieved by a tribunal making significant findings of
credibility solely on the basis of written submissions.

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(b) substantively: i.e., is the deprivation itself (the possibility that it could occur) consistent with POFJs?

3) If L/L/SOP at stake in decision and not in accordance with POFJ, is denial justified by s.1?

No, not a reasonable limit, prescribed by law, that is demonstrably justified in a free and

democratic society

Wilson disregards ministers utilitarian arguments re fact that procedures were accepted by

UN and that IAB was subject to a strain in volume of cases if oral hearings grantedbalance of
administrative convenience does not override the need to adhere to principles of fundamental justice.

Note: this case does not mean you get an oral hearing under s.7 ; consider the context of the case - b/c
credibility was at stake oral hearing was required

Wilson J says resort to the Charter should be reserved for cases in which ordinary statutory

interpretation cannot provide a remedy. Here, the principles of fundamental justice in the context of
determining refugee status require an oral hearing, and the statute itself expressly barred some refugee
claimants from receiving such a hearing.

2. Reasoning: Beetz J (3)

Held: CBR s.2(e) infringed

Basically makes decision for same reasons as under Charter but applies different rights document
Right to fair hearing under s 2(e) CBR - you may get an oral hearing depending on ctext
Must consider the nature of the rights at issue (important rights = life, liberty, security of

person) and severity of consequences for individuals concerned Remedy: case remitted to IAB for full
hearing of claim on the merits

Breakthrough case for 2 reasons:

3 judges decided to breathe rights into the CBR (perhaps b/c this was right after the Charter
came

into effect and they didnt want to get into s.7 yet)

The judgment by Wilson (+2) decided there had to be hearings for refugee detention
processled

to government overhaul of statutory scheme and establishment of Immigration and Refugee Board.

INCORPORATION OF COMMON LAW FRAMEWORK UNDER S. 7

RECALL: Baker Framework for determining content of PF: Nature of decision

Role and place of decision w/i statutory scheme
Importance of decision to individual affected

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Legitimate expectations
Minister or agencys choice of procedures

A unanimous decision by the Supreme Court of Canada on January 29, 2010 confirms that the
Canadian government breached Omar Khadrs Charter rights. The decision also says that the
effect of the Charterbreaches continues to this day.[1] However, the Court overturned an
order to the government to seek repatriation of Khadr from detention by American authorities,
preferring to let the government choose the diplomatic steps necessary to address the
breaches.[2]

The Supreme Court upheld the decision of the Federal Court of Canada, confirmed by a
majority of the Federal Court of Appeal, that Khadrs right to life, liberty and security of the
person section 7 of theCanadian Charter of Rights and Freedoms was violated when
Canadian government officials questioned him at Guantanamo Bay: [T]he statements taken by
Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting
his liberty and security interests.[3]

More specifically, the Court found that:

Canadian officials questioned Mr. Khadr on matters that may have provided important
evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr
was being indefinitely detained, was a young person and was alone during the
interrogations.[4]

Despite this finding of a Charter breach by the government, the Supreme Court did not endorse
the remedy provided by the Federal Court. The lower court had ordered the Canadian
government to ask the United States to repatriate Khadr.[5] A majority of the Federal Court of
Appeal upheld this order.[6]

The Supreme Court, however, agreed with government lawyers that the remedy an order to
make an official request for repatriation through diplomatic channels was constitutionally
inappropriate in this case. Requests for repatriation are made under the governments
prerogative power over foreign relations. The Court refers to the prerogative power as a
limited source of non-statutory administrative power accorded by the common law to the
Crown.[7] It is a residue of monarchical authority covering a range of political and public-
policy functions and it has not in Canadas case been displaced by legislation.[8]

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While courts may determine whether the exercise of the prerogative power over foreign
relations infringes theCharter, the constitutional context demands that judicial review be
sensitive to the fact that the executive branch of government is better placed to make such
decisions within a range of constitutional options.[9] In effect, then, a court must determine
whether it should defer to the governments choices in the political and policy spheres, or
exercise its judicial authority to address the rights of an individual.

In the case of Omar Khadr, the Court considered it more appropriate to leave it to the
government to decide how best to respond to this judgment in light of current information, its
responsibility for foreign affairs, and in conformity with the Charter.[10] It gave two reasons
for this cautious conclusion. First, Mr. Khadr is not under the control of the Canadian
government; the likelihood that the proposed remedy will be effective is unclear; and the
impact on Canadian foreign relations of a repatriation request cannot be properly assessed by
the Court.[11]

Second, the Court considered the record of evidence too incomplete to allow it to second-guess
the governments options and choices: We do not know what negotiations may have taken
place, or will take place, between the U.S. and Canadian governments over the fate of Mr.
Khadr.[12]

Faced with these limitations evidentiary uncertainties, the limitations of the Courts
institutional competence, and the need to respect the prerogative powers of the executive
the Court opted to issue a declaration that the governments actions had breached Khadrs
section 7 Charter rights, while leaving the government a measure of discretion in deciding how
best to respond.[13] (One commentator called this the biggest but in Canadian judicial
history.[14])
T]he Supreme Court has recognized the constitutional responsibility of the executive to make
decisions on matters of foreign affairs in the context of complex and ever-changing
circumstances, taking into account Canadas broader interests. The Government will carefully
review the Supreme Courts ruling and determine what further action is required.[15] in the
case of refusal by a government to abide by constitutional constraints, courts are empowered
to make orders ensuring that the governments foreign affairs prerogative is exercised in
accordance with the constitution.[21] Supporters at the University of Torontos Faculty of
Law explained:

A declaration, once issued by a court, is always open to enforcement. Should the violation of
Mr. Khadr's rights go unremedied, the Canadian government will continue to be in violation of
the law. It will remain open for Mr. Khadr's lawyers to return to court at a later date and renew
a request for a remedy on the grounds that the circumstances animating the court's deference
have changed, and judicial deference is no longer warranted.[22]
The Khadr decision sheds little light on underlying questions about the separation of powers,
particularly the line between Charter rights and government policy under the Crown
prerogative. An Australian judge has highlighted the delicacy of this area of constitutional law:

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Although tensions between the Legislature and the Judiciary inevitably arise as the result of
courts invalidating legislation, they are minor compared to the tensions that can arise between
the Judiciary and the Executive.[32]
Fears of a possible constitutional crisis may sound exaggerated, but they make sense in this
context. The risk is that in a separation-of-powers showdown, a government could simply
ignore a court order it considered wrong in principle or totally impractical. Canadas
remarkable history of compliance with court decisions would be jeopardized; the rule of law
would be cast in doubt.[34] For this reason, recent cases like Khadr and Abdelrazik can be
analyzed simplistically in terms of Who backed down? If the court had made a clear-cut order
and the government had disregarded it, something like a constitutional crisis could have been
the result.

5. Parliament and its Components:

The Monarch and Governor General

Senate House of Commons

provincial govt creat s. 96 courts but is the federal govt that appoints the judges to these superior
courts and pays their salaries.

judicial independence the notion that judges are at arms length from the other branches of
government

judicial independenc- 3 core characteristics of security of tenure, financial security and administrative
independence

1. security of tenure judges may not be dismissed by the executive before the age of retirement
except for misconduct or disability. thus a judge may only be removed from office for a reason
relating to his or her capacity to perform his or her judicial duties. Arbitrary removal is
prohibited.
2. Fincial security relates to the pay judges receive for performing their job. It protects against an
unscrupulous government that could utilize its authority to set judges salaries as a vehicle to
influence the course and outcome of adjudication
3. administrative independence requires the courts themselves have control over the
administrative decisions that bear directly and immediately on the excersise of the judicial
function

The powers of the Senate and the selection, qualifications and terms of senators are for the
most part governed by sections 21 to 36 of the Constitution Act, 1867. Therefore, reform
initiatives revolving around these matters would require amending the Constitution of Canada.
Canadas constitutional amending procedures provide different formulae for amending the
Constitution, some of which enable the federal Parliament to act alone and some of which
require provincial concurrence.

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Section 44 of the Constitution Act, 1982 permits Parliament to amend the Constitution
without provincial concurrence in limited situations. It grants Parliament the authority to
exclusively amend the Constitution of Canada in relation to the executive government
of Canada or the Senate and House of Commons. Paragraphs 42(1)(b) and (c),
however, list four Senate-related exceptions to Parliaments exclusive amending power
in section 44, and indicate that alterations falling within these exceptions require
provincial

The Senate related exceptions are

changes to the powers of senate

the number of senators to which a province is entitled and\
the method of selecting senators
the residence qualifications of senators

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The hypothesis here is that the modern principle of statutory interpretation has been utilised by
the courts in Canada to fulfil a rhetorical function, that is to explain and justify in objective terms
the interpretative decision; this role is distinct and separate from its other more obvious function,
namely to provide an outline of methods that guide judges in the construction of statutes. It is
argued that, in contrast with Driedger who merely intended the latter, the Supreme Court of
Canada has attributed and given high importance to the former role of the quote in order to
promote the legitimacy of the judicial role in construing the legislative norms adopted by
Parliament, the elected body of Government.

Driedgers Modern Principle of Statutory Interpretation Today there is only one principle or
approach, namely, 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

Based on our review of the four case studies, we conclude that to further both democracy and
competence, courts: (i) should review the substance of the agencies decisions under a weak
reasonableness test and (ii) should concentrate on the administrative process, notably by
enforcing a widespread duty to give reasons and by assuring generous rights of participation.

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In Canada, there is very limited judicial review of the substance of administrative rulemaking.
Review is only possible on constitutional grounds, including breaches of the Charter of Rights
and Freedoms. Judicial review of administrative adjudication has evolved from very intrusive to
quite deferential and nuanced. In recent decades, the Supreme Court of Canada has demonstrated
a subtle understanding of the way courts can monitor the executive without exceeding their
competence or their position in the democratic structure.

Judicial deference persists to the present. In many cases courts defer even in the absence of a
privative clause. They seldom apply the correctness standard to strike down administrative
actions, and the few cases where they do involve general questions of law, human rights,
constitutional issues, or jurisdictional concerns. Of particular interest to our inquiry is the Courts
contextual approach to determining the standard of review.

Canada does not have a federal administrative procedure act that establishes the procedure to be
followed for administrative adjudications. However, courts have long enforced a duty of
procedural fairness.

To make its position clearer, the Canadian Supreme Court in Baker explained the non-exhaustive
five factors that it will use to identify implied procedural obligations in its judgments. These are:
(1) the nature of the decision and the process used; (2) the statutory scheme; (3) the importance
of the decision to the individuals affected; (4) the legitimate expectation of the person bringing
the challenge; and (5) the procedural choices made by the agency.20

A recent decision of the Canadian Supreme Court, nevertheless, may be taking a step to extend
the duty to give reasons. In Dunsmuir, the Canadian Supreme Court elaborated on the content of
its new standard of reasonableness that applies to the substantive review of administrative
decisions. The Court requires that the decision be justif[ied], transparen[t] and intelligib[le], in
addition to being within the range of possible, acceptable outcomes which are defensible based
on the facts and law.210 Under this new regime, reasonableness is more related to the quality of
the agencys reasoning than to the outcome, that is, it is more linked to process than to substance.

In making rules, the Canadian public administration acts both formally, through rules and
regulations, and informally, through guidelines, policies, and directives

Outside of formal regulations and in the absence of legislative requirements, Canadian courts
have refused to impose procedural obligations on agency rulemaking

Precedent: the basic idea Precedent is centrally about the (not necessarily conclusive) obligation
of a decision maker to make the same decision that has been made on a previous occasion about
the same or similar matters. That seems straightforward enough, but it is nevertheless important
to distinguish two different dimensions of precedent. One, which we can label vertical
precedent, describes the obligation of a court to follow the decision made by a court above it in
the judicial hierarchy on the same question, even if that question has arisen in a different case
(Schauer 2009: 3637). When trial courts make decisions on questions of law (as opposed to

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determining the facts in the particular matter before them), they are expected to follow to obey
the decisions of the appellate courts that sit above them in what can be analogized to the
military chain of command, just as the first-stage appellate courts must, in turn, follow the
decisions made by courts above them.

To be contrasted with this sense of vertical precedent is horizontal precedent, conventionally

referred to as stare decisis (typically translated as stand by what has been decided) (Lee 1999;
Wise 1975). Understood horizontally, the obligation of a court is not the obligation to obey a
decision from above, but is instead the obligation to follow a decision by the same court
(although not necessarily by the same judges) on a previous occasion. And thus the obligation is,
by definition, not one of obeying an institution higher in some hierarchy. Rather, the obligation
to follow precedent in its horizontal dimension is, in essence, about treating a prior decision as if
it came from above, even if it did not, and is accordingly about following an earlier decision
solely because it came earlier. Horizontal precedent is about treating temporal priority as
sufficient grounds for authoritativeness in its own right.

Common law jurisprudence was built on two complementary and interdependent notions: custom
and reason

Don Stuart has suggested that precedent is only one of the working ingredients of judicial
decision-making, particularly at the Supreme Court of Canada level, achiev[ing] a compromise
between a goal of certainty and predictability and one of flexibility. 147 The recent treatment of
precedent in Canada, particularly the horizontal convention, seems to confirm this view. On the
other hand, we have seen the Supreme Court of Canada take a stricter view than some would like
to the vertical convention of precedent, particularly the precedential value of authoritative
obiter from that court.

Huband J.A. in Neves has correctly observed that the doctrine of stare decisis is being eroded
not, I would suggest, beyond recognition, but eroded nonetheless. Some of the trends
discussed here represent a challenge to the traditional view that a later panel of a given court
should not be free to substitute its doctrinal preferences or views for that of the first panel to
decide the matter. As Bruce Harris has noted, in arguing for a principled approach to horizontal
overruling, there would appear to be no reason why the doctrinal disposition of the earlier court
should automatically prevail over that of the later court.149 Stability, consistency, and
protection of reliance interests are all important institutional values promoted by the doctrine of
stare decisis. Recent appellate decisions signal a shift toward a greater focus on exactly how
those values play out on the facts before the court, rather than in an abstract sense. Such a
principled and functional approach is welcome.

Generically, equity is a safety valve for opportunism, which in a generalized setting is

exceptional. Fiduciary law presents a more systematic problem of potential opportunism that
calls for more than a mere safety valve.

Fiduciary law is central to the role that equity plays in suppressing opportunism

International treaties and conventions are not part of Canadian law unless they have been implemented
by statute

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It is a matter of well-settled law that an international convention ratified by the executive branch of
government is of no force or effect within the Canadian legal system until such time as its provisions have
been incorporated into domestic law by way of implementing legislation:

In my view, one should proceed with caution in deciding matters of this nature, lest we adversely affect
the balance maintained by our Parliamentary tradition, or inadvertently grant the executive the power to
bind citizens without the necessity of involving the legislative branch.

Instead, the result will be that the appellant is able to achieve indirectly what cannot be achieved directly,
namely, to give force and effect within the domestic legal system to international obligations undertaken
by the executive alone that have yet to be subject to the democratic will of Parliament.

de Guzman v. Canada (Minister of Citizenship and Immigration), 2005

FCA 436, [2006] 3 FCR 655
Facts: De Guzman was sponsored by her mother as an unmarried daughter in 1993. She had lied by saying
that she had never been married and had no dependents. During her physical examination, she confessed she
had one daughter. The birth certificate of De Guzman's daughter showed her father as unknown and the
place and date of her parent's marriage as illegitimate. De Guzman and and her daughter were granted
permanent residency.

However, De Guzman had been married and had two other sons whose birth certificate listed their father and
De Guzman as married to him.

De Guzman's misrepresentation gained her permanent residency - she would not have qualified for sponsorship
if she was married.

In 2003, De Guzman tried to sponsor her 16 and 17 years old sons. They were rejected on the grounds that
they were not members of the Family Class because they had not been examined for immigrations purposes
when De Guzman applied to come to Canada.

Issue 3: Is IRPR, s. 117(9)(d) invalid b/c it renders the IRPA non-compliant with international human rights
instruments to which Canada is a signatory?

Analysis 3: Per Baker v Canada, international law is an interpretive aid that places great weight on the "best
interests of the child." However, the jurisprudence is unclear. Sometimes international law is merely
persuasive or part of the context, while at other times it may be determinative.

Court finds that the Convention of the Rights of a Child applies to the interpretation and application of the
IRPA, but does not require that each and every provision of the IRPA and IRPR comply with international
human rights instruments when considered in isolation.

Held: IRPR, s. 117(9)(d) is validly enacted under the IRPA and does not violate the Charter or the Convention.

the Canadian constitution includes unwritten elements derived from the British constitution, upon
which Canadas constitution is based.

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In the absence of any express written provisions concerning treaty-making (or foreign affairs generally)
in the Canadian constitution, treaty-making in Canada is recognized by the courts as an exclusively
executive function. This is consistent with British constitutional tradition.

This doctrine is the basis for Canadas so-called dualist approach to international law: for a treaty to take
direct effect in domestic law without legislative action would violate the fundamental constitutional
principle that laws are made by legislatures and not by the Crown. Canadian dualism is qualified,
however. It does not extend to rules of customary international law.9 And as we will see, it does not
prevent judicial notice of treaties or judicial interpretive practices to ensure conformity with treaty
requirements.

In sum, Canadian courts take judicial notice of the VCLT and purport to give effect to its interpretive
rules in construing treaties. The authority for doing so is well established and uncontroversial. In
particular, the practice of resorting to travaux prparatoires is accepted possibly more so than the
VCLT itselfenvisions. Especially outside the specialized area of international taxation, Canadian judicial
resort to the VCLT might be criticized as somewhat superficial. This seems likely to change, however, as
Canadian courts become increasingly accustomed to hearing submissions based on the states treaty
obligations.

a statute that grants an administrative decision-maker the power to make discretionary decisions
ought to be construed, like other Canadian statutes, according to the presumption that it conforms
to Canadian treaty obligations and other rules of international law binding on the state.

Over twenty years later, the application of the presumption of conformity to discretionary
decision-making powers arose again in Baker v. Canada. 119 The case concerned a Jamaican
woman whom the federal government sought to deport for overstaying her visitors visa by
several years. She sought to apply for permanent residence in Canada, but could not do so from
within the country without an exemption from the minister, pursuant to a discretionary power
exercisable on humanitarian and compassionate grounds. The minister declined to make the
115 Capital Cities, supra note 112. 116 Broadcasting Act SC 1967-68 c. 25 s. 17(1). 117 Inter-
American Radiocommunications Convention 1937 [1938] CanTS no. 18. 118 Capital Cities,
supra note 112, at 188. 119 [1999] 2 SCR 817 (Baker). 33 exemption. Baker challenged this
decision arguing, among other things, that it unreasonably failed to give sufficient weight to the
interests of her Canadian-born children, contrary to Canadas obligations under the 1989
Convention on the Rights of the Child.120 The federal government argued (implausibly, given
the legislative record)121 that that treaty was not implemented in Canadian law. The majority of
the Supreme Court of Canada accepted that conclusion, but held nevertheless that the ministers
decision was an unlawful exercise of discretion because, among other reasons, it unreasonably
neglected certain considerations, including Canadas obligations under the Convention. While
the majority did not depict this aspect of its decision as an application of the presumption of
conformity with international law, that was its effect.122

Related to this point is the constitutional doctrine, described at the beginning of this chapter, that
foreign affairs is a prerogative of the Crown. That prerogative is, generally speaking, beyond
judicial review.168 The orthodoxy is that Canadian courts will not sit in judgment of
government acts in the area of foreign affairs. An actual or potential treaty breach by Canada will
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seemingly not entitle a claimant to any relief from a Canadian court where to grant such relief
would interfere with the governments conduct of foreign relations without some substantial
connection to domestic law. These statements are generalizations, and made with some
hesitation. As the cases reviewed in this chapter demonstrate, Canadian judicial engagement with
treaties is increasing and expanding. The boundaries of judicial action in these areas have never
been entirely clear, and may grow more uncertain as the linkages between Canadian and
international law continue to multiply

Summary: Re ss. 5, and 6 of Supreme Court Act

Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 (CanLII)

The reference asks the Court to determine what the proper interpretation of ss. 5, and 6 of the Supreme Court
Act (SCA) are. Specifically, whether s. 6 of the SCA contains a temporal requirement that persons from the
advocates of the province must be current members of the Quebec bar. The Court is also asked to consider
whether Parliament can legislate an interpretation of s. 6 of the SCA that would allow former members of the
Quebec bar, with a minimum of 10 years standing, to be eligible under s. 6 of the SCA.

The Majority of the Court concludes that to meet the definition of from the advocates a judge must be
selected from among the current members of the Quebec bar. Parliament cannot unilaterally amend the SCA.

Interpretation of ss. 5, 6

Both a textual and purposive interpretation of the provision lead the Majority to conclude that former
advocates are excluded from appointment to the Supreme Court as being from among the advocates under s.
6. Section 6 contains a temporal requirement. The language of s. 6 is more restrictive than the language of s. 5
of the SCA. Section 5 speaks to both current and former members of at least ten years standing with the bar. In
contrast, s. 6 does not speak to, and by extension encompass, former members of the bar.

Section 6 is an important provision in protecting the central bargain made by Quebec in negotiations leading
up to Confederation. As was agreed to, s. 6 ensures that judges on the Supreme Court have civil law training
and represent the legal and social traditions of Quebec society. Quebecs confidence in the Court depended on
representation of the province.

Amending Formula

Unanimous approval of the provinces would be required make constitutional the proposed amendment to the
SCA. The SCC is a constitutionally essential court that engages both federal and provincial interests. The
unanimity formula is reserved for topics that engage the interests of all provinces; the formula effectively
creates veto power in each individual province and territory.

The SCC has constitutional protection. Its status as a constitutionally protected Court is supported by the
developmental history of the Court, which the Majority goes into some detail on. In 1949, for example, when
the right of appeal to the Judicial Committee of the Privy Council was abolished the SCC became the Court of
last resort; an integral part of the constitutional architecture. it became the final arbiter of division of powers
disputes, and became the final words on matters of public law and provincial civil law. Later, the Court

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abolished appeals as of right in Civil matters, giving the Supreme Court wider discretion over the cases it
hears.

For the majority composition means more than 9 judges, 3 from Quebec. Composition entails that the members
of the bench meet eligibility requirements. It means who is eligible to be one of the three judges from Quebec.
Incidentally, the SCC suggests that composition entails continued existence of the Court.

Dissent

Moldaver J. authored a strong dissent. To have had standing at the Quebec bar for over 10 years, while not a
current member, is sufficient to meet the eligibility requirements under s. 6 of the SCA.

It would be an odd result if re-joining the Quebec bar for one day could change a judges eligibility.

The textual links between ss. 5, and 6 restrict the Court from interpreting s. 6 as including a temporal element.
Reading ss. 5, and 6 of the SCA together it cannot be said that Quebec appointees are under more stringent
eligibility requirements than their common law counterparts.

Section 5 uses the language Any person may be appointed a judge who is or has been a judge of a superior
court of a province or a barrister or advocate of at least ten years standing at the bar of a province. The words
any person suggest that the eligibility requirements set out in that section apply to all appointees. The
judges referred to in s. 6, must be the ascertained judges that are eligible under s. 5.

- Reference re Supreme Court Act

Sections 5 , 5.1 , 6 and 6.1 of the Supreme Court Act now read as follows:

5. Any person may be appointed a judge who is or has been a judge of a superior court of a
province or a barrister or advocate of at least ten years standing at the bar of a province.

5.1 For greater certainty, for the purpose of section 5 , a person may be appointed a judge if, at
any time, they were a barrister or advocate of at least 10 years standing at the bar of a province.

6. At least three of the judges shall be appointed from among the judges of the Court of Appeal
or of the Superior Court of the Province of Quebec or from among the advocates of that
Province.

6.1 For greater certainty, for the purpose of section 6 , a judge is from among the advocates of
the Province of Quebec if, at any time, they were an advocate of at least 10 years standing at the
bar of that Province.

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Parliament cannot unilaterally change the composition of the Supreme Court of Canada. Essential
features of the Court are constitutionally protected under Part V of the Constitution Act, 1982 . Changes
to the composition of the Court can only be made under the procedure provided for in s. 41 [1] of
the Constitution Act, 1982 and therefore require the unanimous consent of Parliament and the
provincial legislatures. Changes to the other essential features of the Court can only be made under the
procedure provided for in s. 42 [2] of the Constitution Act, 1982 , which requires the consent of at least
seven provinces representing, in the aggregate, at least half of the population of all the provinces.

Chapter 7:

Courts determine the exact nature and scope of the constitional limits, by interpreting the written
constitution and someimes by discerning unwritten constitution principles by which the legislature must
abide = Constitutionlized interpretaion role 2) courts decide whehter 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 or effect

Chapter 8:

The supreme court in Vried .v. Alberta concluded that the Alberta legislatures 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 the Charter and that this action was
justified under s. 1. the majority also concluded that the appropriate remedy for this violation was to
read in sexual orientation as prohibited ground of discrimination for purposes of the Act.

Chapter 3, 5

page 523

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