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Indigenous - Charter
MORE CASES
Part 2
. Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court considers the Canadian constitutional history of indigenous people:(c) Historical Origins, Meaning and Purpose of Aboriginal and Treaty Rights
[132] Aboriginal and treaty rights referred to in s. 35 of the Constitution Act, 1982 shed light on the protection afforded by s. 25, which refers, in part, to the same rights. Section 35 gives those rights constitutional status by protecting them from unjustified infringement by legislative and executive action (see Sparrow).
[133] In Van der Peet, Lamer C.J. explained that the doctrine of Aboriginal rights and the approach to interpreting those rights liberally in the Constitution is explained by plain historical fact: “. . . when Europeans arrived in North America, [A]boriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries” (para. 30 (emphasis in original)). He therefore stated that s. 35 is designed to “provide the constitutional framework through which the fact that [A]boriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown” (para. 31).
[134] Section 35 also constitutionally entrenched treaty rights held by the Aboriginal peoples of Canada, which s. 35(3) states, for greater certainty, “includes rights that now exist by way of land claims agreements or may be so acquired”. This constitutional guarantee is warranted because “a treaty represents an exchange of solemn promises between the Crown and the various [First] [N]ations. It is an agreement whose nature is sacred” (R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 41).
[135] The Court has given full expression to the purposes of s. 35 by recognizing that Aboriginal and treaty rights extend to a wide range of underlying constitutional interests. For instance, constitutional recognition of Indigenous peoples’ relationships with the land can ground the right for an Indigenous people to hold land title that, in some circumstances, rests on s. 35 (see Delgamuukw; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257). Further, treaties may address various interests, including interests related to land or self-government (see, e.g., First Nation of Nacho Nyak Dun, at para. 10).
[136] In Kapp, Bastarache J. drew upon Professor Macklem’s view that the broad scope of the interests of the Indigenous peoples of Canada that may be recognized as constitutionally entrenched are those related to “[I]ndigenous difference”. Professor Macklem observed that Indigenous difference reflects “four complex social facts [that] lie at the heart of the relationship between Aboriginal people and the Canadian state” (p. 4). These are: “. . . Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, and Aboriginal participation in a treaty process . . .” (p. 4).
[137] Relying on the Court’s opinion in the Secession Reference connecting both s. 35 and s. 25 to a tradition of constitutional protection of minority rights, Ms. Dickson asserts that s. 25 protects initiatives designed to preserve or enhance Indigenous difference. The Attorney General of Alberta intervenes to argue similarly that s. 25 “enables an approach that protects interests associated with Indigenous difference from erosion by individual Charter rights” (I.F., at para. 20). The VGFN resists this conclusion, and answers that this characterization would exclude a wide range of self-governance rights and unduly limit s. 25’s protections. Instead, the VGFN ties the impugned residency requirement to Indigenous difference and the continuance of a pre-contact Indigenous legal order.
[138] Indigenous difference is an appropriate criterion for circumscribing the “other rights or freedoms” under s. 25 because it helps identify the contours of the provision’s protective purpose if there is a conflict with an individual Charter right. Indigenous difference connects the “other righ[t] or freedo[m]” to the collective minority interest that s. 25 is designed to serve. When Indigenous difference is not shown to underlie the competing collective interest, the ultimate justification for setting aside the individual Charter right falls away. The concept of Indigenous difference connects the “other rights” to the rest of s. 25 and gives content to what it means for a right or freedom to belong to or benefit — to meaningfully “pertain to” — the Aboriginal peoples of Canada.
[139] The clear relationship between ss. 25 and 35 suggests that their purposes must be seen as related. Section 35 speaks to how the Canadian Constitution protects Indigenous difference from unjustified legislative or executive infringement. In the same spirit, s. 25 ensures that the individual rights in the Charter do not themselves undermine Indigenous difference where they abrogate or derogate from the measures that protect that difference. . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considers the history of aboriginal rights in Canadian law, here while setting out it's interaction with Charter rights:(2) Indigenous Self-Government and the Charter
[46] Before considering whether the Charter applies to the VGFN’s residency requirement, it is useful to review the historical and policy context for Indigenous self-government in Canada, including under the Charlottetown Accord of 1992, the federal government’s “Inherent Right Policy” since 1995, and the final Report of the Royal Commission on Aboriginal Peoples published in 1996. It is also useful to review how courts have consistently applied the Charter to Indigenous governments.
[47] As a preliminary matter, we note that although this Court has yet to recognize an inherent right to Indigenous self-government as an Aboriginal right protected under s. 35 of the Constitution Act, 1982 (see R. v. Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 S.C.R. 821, at para. 24; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 171), an inherent right to Indigenous self-government has now been affirmed on the international plane by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295, October 2, 2007. In 2016, the Canadian government supported the Declaration and committed to adopt and implement it in accordance with the Canadian Constitution. Recent federal legislation has affirmed the Declaration as “a universal international human rights instrument with application in Canadian law” and provides “a framework for the Government of Canada’s implementation of the Declaration” (United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4). For example, the Declaration has been implemented specifically in respect of the provision of Indigenous child and family services under the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (see Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5).
(a) The Charlottetown Accord of 1992
[48] Section 32(1) of the Charter does not expressly provide that the Charter applies to Indigenous governments. However, the Draft Legal Text of the Charlottetown Accord of 1992 had proposed to amend s. 32 of the Charter to recognize, in s. 32(1)(c), that the Charter applies “to all legislative bodies and governments of the Aboriginal peoples of Canada in respect of all matters within the authority of their respective legislative bodies” (p. 36). It had also proposed to add a new s. 35.1 of the Constitution Act, 1982 to provide in part that “[t]he Aboriginal peoples of Canada have the inherent right of self-government within Canada” (p. 37). The Accord was approved by the federal, provincial, and territorial governments and by the Assembly of First Nations, Inuit Tapirisat of Canada, Native Council of Canada, and Métis National Council, but was not ratified because it did not receive the support of a majority of Canadians in a national referendum (see Hogg and Wright, §§ 4:3 and 28:42). Even so, it is noteworthy that these proposed constitutional amendments saw the inherent right to self-government as compatible with the obligation of Indigenous governments to comply with the Charter.
(b) Federal Government Policy Since 1995
[49] Despite the failure of the Charlottetown Accord, since 1995 the federal government’s policy, first articulated under its “Inherent Right Policy”, has been that Indigenous peoples in Canada have an inherent right to self-government guaranteed under s. 35 of the Constitution Act, 1982, but also that the Charter applies to Indigenous governments. The policy recognizes the historical fact that Indigenous peoples were living in self-governing communities before Europeans arrived, and seeks to ensure that Indigenous governments, like other governments in Canada, comply with the Charter. The federal government sees these two policy objectives as compatible. As the Government of Canada explained in its “Inherent Right Policy”:The Government is committed to the principle that the Canadian Charter of Rights and Freedoms should bind all governments in Canada, so that Aboriginal peoples and non-Aboriginal Canadians alike may continue to enjoy equally the rights and freedoms guaranteed by the Charter. Self-government agreements, including treaties, will, therefore, have to provide that the Canadian Charter of Rights and Freedoms applies to Aboriginal governments and institutions in relation to all matters within their respective jurisdictions and authorities.
The Charter itself already contains a provision (section 25) directing that it must be interpreted in a manner that respects Aboriginal and treaty rights, which would include, under the federal approach, the inherent right. The Charter is thus designed to ensure a sensitive balance between individual rights and freedoms, and the unique values and traditions of Aboriginal peoples in Canada.
(Crown-Indigenous Relations and Northern Affairs Canada, The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, last updated March 1, 2023 (online); see also Crown-Indigenous Relations and Northern Affairs Canada, General Briefing Note on Canada’s Self-government and Comprehensive Land Claims Policies and the Status of Negotiations, last updated August 16, 2016 (online).) [50] Since 1995, the federal government has negotiated many self-government agreements with Indigenous communities across Canada, which have recognized that the Charter, the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and the Criminal Code, R.S.C. 1985, c. C-46, continue to apply to Indigenous peoples (Crown-Indigenous Relations and Northern Affairs Canada, Self-government, last updated August 25, 2020 (online); see, e.g., the Tsawwassen First Nation Final Agreement (2007), c. 2, s. 9, which provides that the Charter applies to the Tsawwassen government in respect of all matters within its authority; Nisga’a Final Agreement (1999), c. 2, s. 9; Maa-nulth First Nations Final Agreement (2009), s. 1.3.2). The federal government has also affirmed that self-government agreements negotiated before 1995 will, as a general principle, “continue to operate according to their existing terms” (The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government). This includes the Self-Government Agreement with the VGFN.
(c) The Legal Policy Debate About Applying the Charter to Indigenous Governments
[51] Shortly after the failure to ratify the 1992 Charlottetown Accord, the Royal Commission on Aboriginal Peoples extensively studied whether the Charter should apply to Indigenous governments exercising inherent self-government powers. The Royal Commission concluded that the Charter applies, but in accordance with s. 25, it should be “given a flexible interpretation that takes account of the distinctive philosophies, traditions and cultural practices of Aboriginal peoples” (Report of the Royal Commission on Aboriginal Peoples (“RCAP Final Report”), vol. 2, Restructuring the Relationship (1996), at p. 234). We will return later to the Royal Commission’s perspective on the intimate connection between ss. 32 and 25 of the Charter. That perspective takes a broad view of the application of the Charter to Indigenous governments under s. 32(1), but also interprets the Charter under s. 25 with sensitivity to the collective rights of Indigenous peoples, to protect what the Royal Commission referred to as their “distinctive philosophies, traditions and cultural practices” — or what Professor Patrick Macklem has encapsulated in the term “[I]ndigenous difference” (Indigenous Difference and the Constitution of Canada (2001)). As we explain below, s. 25 was included in the Charter as a protection for the distinctive minority rights of Indigenous peoples that might be abrogated or derogated from by the application of individual Charter rights.
[52] The RCAP Final Report, published in 1996, described two approaches to addressing whether the Charter applies to Indigenous governments exercising inherent self-government powers. The first approach claims that Indigenous governments should be bound by the Charter as a matter of basic constitutional principle, because “it would be highly anomalous if Canadian citizens enjoyed the protection of the Charter in their relations with every government in Canada except for Aboriginal governments” (vol. 2, at p. 227). This approach does not see the Charter as necessarily inconsistent with Indigenous values, because the Charter itself is “modelled on international standards with universal application” (p. 228).
[53] The second approach described by the RCAP Final Report asserts that Indigenous governments should not be bound by the Charter, because Indigenous peoples did not “consen[t] to the application of the Charter in a binding constitutional instrument, such as a self-government treaty with the Crown” (vol. 2, at p. 228). It also claims that “some Charter provisions reflect individualistic values that are antithetical to many Aboriginal cultures, which place greater emphasis on the responsibilities of individuals to their communities” (p. 230). This approach claims that applying the Charter to Indigenous governments “could hamper and even stifle the efforts of Aboriginal nations to revive and strengthen their cultures and traditions” and “might operate as the unwitting servant of the forces of assimilation and domination” (p. 230).
[54] After studying these issues extensively, the Royal Commission settled on an intermediate approach embodying three basic principles. First, all Canadians — Indigenous and non-Indigenous alike — are “entitled to enjoy the protection of the Charter’s general provisions in their relations with governments in Canada, no matter where in Canada the people are located or which governments are involved” (p. 230). Second, Indigenous governments “occupy the same basic position relative to the Charter as the federal and provincial governments” (p. 230). And third, the Charter should apply to Indigenous governments and be “interpreted in a manner that allows considerable scope for distinctive Aboriginal philosophical outlooks, cultures and traditions”, based on the “interpretive rule . . . found in section 25 of the Charter” (p. 230).
[55] The Royal Commission’s final recommendation was thus that the Charter applies to Indigenous governments, but under s. 25, the Charter must be interpreted flexibly to account for the distinctive philosophies, traditions, and cultural practices of Indigenous peoples (RCAP Final Report, vol. 2, at p. 234; see also Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (1993), at pp. 39-41; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), at pp. 262-64).
[56] The debate on whether the Charter should apply to Indigenous governments is complex and has generated a rich academic literature on both sides of the issue, some of which the Royal Commission drew on in reaching its conclusions and making its recommendations (see, e.g., B. Slattery, “First Nations and the Constitution: A Question of Trust” (1992), 71 Can. Bar Rev. 261; J. Borrows, “Contemporary Traditional Equality: The Effect of the Charter on First Nation Politics” (1994), 43 U.N.B.L.J. 19; P. W. Hogg and M. E. Turpel, “Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues”, in Royal Commission on Aboriginal Peoples, Aboriginal Self-Government: Legal and Constitutional Issues (1995), 375; K. McNeil, “Aboriginal Governments and the Canadian Charter of Rights and Freedoms” (1996), 34 Osgoode Hall L.J. 61; K. Wilkins, “… But We Need the Eggs: The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-government” (1999), 49 U.T.L.J. 53; Macklem, at pp. 194-233; S. Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (2013), at pp. 428-38; G. Otis, “La gouvernance autochtone avec ou sans la Charte Canadienne?” (2005), 36 Ottawa L. Rev. 207; G. Otis, “Gouvernance autochtone et droits ancestraux: une relation nouvelle entre la collectivité et l’individu?”, in A. Lajoie, ed., Gouvernance autochtone: aspects juridiques, économiques et sociaux (2007), 40; D. L. Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (2012), at pp. 62-77; M. Watson, “Reconciling Sovereignties, Reconciling Peoples: Should the Canadian Charter of Rights and Freedoms Apply to Inherent-right Aboriginal Governments?” (2019), 2:1 Inter Gentes 75; N. Metallic, “Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments” (2022), 31:2 Const. Forum 3; K. Gunn, “Towards a Renewed Relationship: Modern Treaties & the Recognition of Indigenous Law-Making Authority” (2022), 31:2 Const. Forum 17; A. Swiffen, “Dickson v Vuntut Gwitchin First Nation, Section 25 and a Plurinational Charter” (2022), 31:2 Const. Forum 27; R. Beaton, “Doctrine Calling: Inherent Indigenous Jurisdiction in Vuntut Gwitchin” (2022), 31:2 Const. Forum 39; R. Hamilton, “Self-Governing Nation or ‘Jurisdictional Ghetto’? Section 25 of the Charter of Rights and Freedoms and Self-Governing First Nations in Canada” (2022), 27:1 Rev. Const. Stud. 279).
(d) Courts Have Consistently Applied the Charter to Indigenous Governments
[57] Against this policy backdrop, courts at all levels have recognized that the Charter applies to Indian band councils exercising governmental powers under the Indian Act, because such powers have a statutory foundation and are delegated by Parliament (see, e.g., Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203; Taypotat v. Taypotat, 2013 FCA 192, 365 D.L.R. (4th) 485, at paras. 36-39, rev’d 2015 SCC 30, [2015] 2 S.C.R. 548; McCarthy v. Whitefish Lake First Nation No. 128, 2023 FC 220, 524 C.R.R. (2d) 103, at para. 93; Linklater v. Thunderchild First Nation, 2020 FC 1065, 96 Admin. L.R. (6th) 233, at para. 16; Horse Lake First Nation v. Horseman, 2003 ABQB 152, 223 D.L.R. (4th) 184, at paras. 14-29; see also G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §18.17; J. Woodward, Aboriginal Law in Canada (loose-leaf), at § 6:6; Brun, Tremblay and Brouillet, at p. 972; M. Buist, Halsbury’s Laws of Canada — Aboriginal (2020 Reissue), at pp. 110-11).
[58] Courts have also recognized that the Charter applies to Indigenous governments operating under legislation outside the framework of the Indian Act (see, e.g., Chisasibi Band v. Napash, 2014 QCCQ 10367, [2015] 1 C.N.L.R. 16, at paras. 49-106). . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relationship of aboriginal rights and the Charter rights (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court summarizes it's conclusions in this case, where a Charter s.15 discrimination argument was advanced against an aboriginal government rule that required counsellours to be resident in the community:I. Overview
[1] As a self‑governing Indigenous community in the Yukon, the Vuntut Gwitchin First Nation (or the VGFN) has its own Constitution that provides for certain rights and freedoms for its citizens, rules for the organization of its government, as well as electoral rules and standards. At the heart of this appeal is a requirement in the VGFN Constitution that the elected Chief and Councillors reside on the settlement land of the First Nation, or relocate there within 14 days of the election. The VGFN’s seat of government is based in Old Crow, a village located about 800 kilometres north of Whitehorse in the traditional territory of the Vuntut Gwitchin and constituting the VGFN’s main community in its settlement land.
[2] Cindy Dickson, a citizen of the VGFN and of Canada, lives in Whitehorse and is constrained, for personal reasons, to stay there. She wishes to stand for election as a VGFN Councillor and says the residency requirement discriminates against her as a non‑resident of the settlement land. She brought a petition in the Supreme Court of Yukon arguing that the requirement violates both her right to equality guaranteed under s. 15(1) of the Canadian Charter of Rights and Freedoms and her right to equality guaranteed by Article IV of the VGFN Constitution (in this Court, Ms. Dickson did not pursue her original challenge based on the equality guarantee in the VGFN Constitution).
[3] Here the debate has focused on the application of the Charter to the VGFN, the ambit of Ms. Dickson’s equality right under s. 15(1), and the proper interpretation of s. 25 of the Charter. The VGFN says the Charter does not apply to it as a self‑governing First Nation. Alternatively, should the Charter apply, the residency requirement does not violate Ms. Dickson’s right to equality and, even if it did, the requirement is nevertheless valid as it is “shielded” by s. 25 of the Charter. Specifically, the VGFN submits that the residency requirement protects collective minority rights relating to its traditional Indigenous modes of government and leadership. As a collective Indigenous right, the provision of the VGFN Constitution cannot be abrogated or derogated from by Ms. Dickson’s individual Charter right.
[4] This appeal raises two novel issues bearing on the application of the Charter to a self‑governing Indigenous community. First, it invites the Court to consider whether, pursuant to s. 32(1) of the Charter, the VGFN is a government by nature or whether it is exercising a governmental activity so that Ms. Dickson’s individual Charter right would apply to its residency requirement. Second, if the Charter does apply to the VGFN, the Court must determine whether s. 25 can be invoked by the VGFN to shield the residency requirement from Ms. Dickson’s Charter challenge. Both the Supreme Court of Yukon and the Court of Appeal held that the Charter applied and that if Ms. Dickson’s s. 15(1) equality right was infringed, the residency requirement was shielded by s. 25. Ms. Dickson appealed on the question of the constitutional validity of the residency requirement, and the VGFN cross‑appealed on the question of the application of the Charter.
[5] We would dismiss Ms. Dickson’s appeal. The Charter applies to the VGFN and to its citizens like Ms. Dickson, principally, but not only, because the VGFN is a government by nature. The circumstances here show that for Indigenous communities, s. 32(1) and s. 25 are intimately connected. It is true that the application of individual Charter rights to a self‑governing Indigenous community may be thought to inhibit the pursuit of rules designed to protect minority Indigenous rights and interests. But s. 25, by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians, acts as a counterweight. Properly understood, s. 25 allows for the assertion of individual Charter rights except where they conflict with Aboriginal rights, treaty rights, or “other rights or freedoms” that are shown to protect Indigenous difference.
[6] While Ms. Dickson has succeeded in showing a prima facie infringement of her right to equality under s. 15(1) of the Charter, as a non‑resident seeking election to the VGFN government, the VGFN has satisfied us that s. 25 protects its residency requirement from abrogation or derogation by her Charter right. Tied to ancient practices of government that connect leadership of the VGFN community to the settlement land, the residency requirement protects Indigenous difference and, pursuant to s. 25, cannot be abrogated or derogated from by Ms. Dickson’s individual Charter right with which it is in irreconcilable conflict. . La Rose v. Canada
In La Rose v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a political plaintiffs' appeal from a trial court's striking of pleadings, here where aboriginal and youths sued the government for causing - and failing to mitigate - climate change.
In these quotes the court considers a Charter s.15 equality argument, I think essentially resolving it on justiciability 'public funds/cabinet' grounds [para 83]:VIII. Section 15 of the Charter
[76] Climate change is having a dramatic, rapidly unfolding effect on all Canadians and on northern and Indigenous communities in particular. In the GGPPA References, the Supreme Court recognized that climate change has had a “particularly serious effect” on Indigenous peoples and Indigenous territories, “threatening the ability of Indigenous communities in Canada to sustain themselves and maintain their traditional ways of life” (GGPPA References at paras. 11-12, 187, 206). Canada accepts this, noting that “[g]lobal climate change is… not a distant problem, but one that is happening now and that is having very real consequences on people’s lives” (Canada’s memorandum of fact and law in Misdzi Yikh appeal at para. 1). It is also beyond doubt that the burden of addressing the consequences will disproportionately affect Canadian youth.
[77] The question is whether it is reasonably arguable that this reality falls within the scope of section 15. The appellants’ case is that climate change affects them disproportionately and that the legislation is not sufficiently robust to address this inequality. Their case is, therefore, one of adverse effect discrimination and whether the law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground.
[78] Claims under section 15 of the Charter are assessed under a two-part test.
[79] The court is to first determine whether the law or state action creates a distinction based on an enumerated or analogous ground. If the law does not do this on its face, claimants must establish that a law has a disproportionate impact on members of a protected group (Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1 [Fraser] at para. 52). Second, the court is to assess whether the law or state action imposes burdens or denies a benefit in a manner that perpetuates, reinforces, or exacerbates some disadvantage experienced by the group, either systemically or historically (R. v. Sharma, 2022 SCC 39, 420 C.C.C. (3d) 1 at para. 28 [Sharma]; Fraser at paras. 27 and 77).
[80] Claims under section 15 may be directed at the state’s conduct in implementing a law or policy, as well as the law or policy itself (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 at para. 125; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 30 [Withler]; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464 at para. 25 [Alliance]; Fraser at paras. 27 and 50). Where the state has chosen to provide benefits or impose burdens on the general population, the state is obligated to do so in a non-discriminatory manner under section 15.
[81] Section 15 is directed toward substantive equality, and ensures that legal benefits are provided and obligations imposed without discrimination on a protected ground (Alliance at para. 25; Fraser at para. 27). Section 15 does not, however, impose “a freestanding positive obligation on the state to enact benefit schemes to redress social inequalities” (Alliance at para. 42). In addition, the state is free to address inequality incrementally (Sharma at para. 64; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at para. 41 [Auton]; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577 at paras. 72-73; Alliance at para. 42).
[82] The adverse or disproportionate effect that climate change is having on the appellants is not the kind of adverse effect that section 15 is to address. I accept the argument that the intergenerational considerations associated with climate change raise profound moral, social and economic questions; but, save as I will discuss later (at paras. 119-125) intergenerational equity is not within the scope of section 15, as the law currently stands.
[83] The underlying rationale for this is rooted in the separation of powers; if courts could adjudicate section 15 claims that allege discrimination caused by future inequalities, the judiciary would effectively be participating in the policy choices around resource allocation, the domain of the legislature and executive (Sharma at para. 63).
[84] I understand the youth appellants’ argument that, as they have no vote or no voice in these decisions, the reach of section 15 ought to be extended. This, however, would be an unprecedented application of section 15, and not the kind of gradual, incremental change by which the law evolves.
[85] Age as a protected ground occupies a unique status, as age is universal: an individual at any given age has personally experienced all earlier ages, and expects to experience later ages. As La Forest J. noted in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, 1990 CanLII 60 (SCC), “while we must guard against laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for importing benefits on one age group over another in the development of broad social schemes and in allocating benefits” (at 297).
[86] Choices made by Parliament or the executive will, of necessity, affect different generations differently. Decisions made today with respect to health care spending may, for example, largely benefit older Canadians, or decisions to invest in major infrastructure projects may largely benefit younger generations. Broad policy decisions by a government, such as the degree to which debt should be incurred, will affect different generations differently. As distinct from their section 7 claims, the true nature of the appellants’ equality argument is about how the legislation will affect them when they are older.
[87] Notwithstanding the above, the international legal community is moving towards the recognition of youth climate rights and the promotion of intergenerational equity. A recent report from the United Nations Committee on the Rights of the Child urged states to take immediate action to address environmental degradation and climate change, as they challenge children’s rights to life, survival, and development (General comment No. 26 (2023) on children’s rights and the environment, with a special focus on climate change, United Nations Committee on the Rights of the Child, 93rd Sess., U.N. Doc. CRC/C/GC/26 (2023) at paras. 63-67). While Canada has ratified the Convention on the Rights of the Child and the Convention has been used many times by courts in interpreting domestic legislation (see, for example, M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973 at para. 148, citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC) at para. 71), this does not yet create a place in the framework under section 15 that would allow the youth appellants’ claim to proceed.
[88] I would therefore uphold the motions judges’ decisions to strike the section 15 claims without leave to amend.
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