Equality Rights versus Aboriginal Reconciliation: An Assessment of R. v. Kapp
Handed down on June 27, 2008, R. v. Kapp, 2008 SCC 41, involves the interplay between sections 15 and 25 of the Canadian Charter of Rights and Freedoms, specifically in the context of Aboriginal fishing rights. This brief commentary asserts that Kapp goes further than simply upholding Aboriginal fishing rights. In fact, the ruling provides more expansive protection of Aboriginal rights, most notably in the context of Aboriginal reconciliation.
R. v. Kapp: An Historical Background
In 1992, the Canadian federal government created the Aboriginal Fisheries Strategy with the aim of enhancing Aboriginal involvement in commercial fishery. The introduction of this new policy occurred partly in reaction to the recommendations of the 1982 Pearse Final Report (Turning the Tide: A New Policy for Canada’s Pacific Fishers – The Commission on Public Fisheries Policy Final Report (Ottawa: Supply and Services Canada, 1982)), and partly in response to the Sparrow (R. v. Sparrow,  1 S.C.R. 1075) and Delgamuukw (Delgamuukw v. British Columbia,  3 S.C.R. 1010) decisions, which directed governments to consult with Aboriginal groups over fishery regulations and resource development and conservation. The Aboriginal Fisheries Strategy has been reviewed and updated periodically since its inception, in order to achieve three central objectives: to ensure that the Aboriginal fishing rights recognised in Sparrow are respected; to provide Aboriginal communities with greater managerial involvement in the fisheries, including increased economic benefits; and to minimise the disruption of non-Aboriginal fisheries (see Kapp at para. 7). Included in the strategy was the implementation of a Pilot Sales Program, which involved the issuance of communal fishing licences to Aboriginal communities, granted pursuant to the Aboriginal Communal Fishing Licences Regulations, SOR/93-332. Under these regulations, communal licences are granted to Aboriginal organisations which are defined as including “an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based [A]boriginal community” (at s. 2).
On August 19, 1998, the federal Minister of Fisheries and Oceans issued a communal fishing licence to the Musqueam, Burrard, and Tsawwassen First Nations in British Columbia. The licence allowed them to fish exclusively for a 24-hour period between August 19, 1998 and August 20, 1998 for food, social and ceremonial purposes, and to sell their catch. Some of the Aboriginal fishers who were designated to fish during this period were also licensed commercial fishers. In response, the appellants, a group of non-Aboriginal, commercial fishers who were excluded from the fishery during this 24-hour period, conducted a protest fishery during the prohibited time frame, under the auspices of the British Columbia Fisheries Survival Coalition, in order to bring a constitutional challenge to the communal licence. They were charged with fishing at a prohibited time, and in defence, filed notice seeking declarations that the Aboriginal Fisheries Strategy, Aboriginal Communal Fishing Licences Regulations, and communal fishing licence were unconstitutional under section 15 of the Canadian Charter of Rights and Freedoms (see Kapp at paras. 8-9).
At the Provincial Court of British Columbia, it was held that the communal fishing licence granted to the three First Nations breached the equality rights of the appellants under section 15 and could not be saved under section 1. On appeal, the Supreme Court of British Columbia found that the Pilot Sales Program “did not have a discriminatory purpose or effect because it did not perpetuate or promote the view that those who were forbidden to fish on the days when the pilot sales program fishery was open are less capable or worthy of recognition or value as human beings or as members of Canadian society” (Kapp at para. 11). As a result, convictions were entered against the appellants and the stay of proceedings was lifted. The case was appealed to the British Columbia Court of Appeal, which ultimately dismissed the appeal (see Kapp at para. 12).
Section 15(2): More than a “Hortatory Admonition”
The Supreme Court of Canada has been fairly vague in its interpretation of the function of s. 15(2) of the Charter. In Lovelace (Lovelace v. Ontario,  1 S.C.R. 950), Iacobucci J., writing for the Court, was unwilling to give section 15(2) independent force, but did provide for that possibility in the future. He found that section 15(2) could either be read as an interpretive aid to section 15(1) or as an exception from the operation of section 15(1) (Lovelace at para. 108). However, in Kapp, the Supreme Court has introduced a third option for the interpretation of section 15(2), which arguably constitutes a watershed in equality rights jurisprudence. The following is quoted at length from Kapp (at paras. 37–38) due to its significance:
If the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it.
But this confirmatory purpose does not preclude an independent role for s. 15(2). Section 15(2) is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15.
The Court has laid out two specific criteria in applying this new section 15(2) test. A “law, program or activity” does not violate the equality guarantee of section 15 if the government demonstrates that it has an “ameliorative or remedial purpose,” and that it “targets a disadvantaged group identified by the enumerated or analogous grounds” (Kapp at para. 41; more extensive analysis is covered at paras. 42-55).
When applied to the facts laid out in Kapp, the Supreme Court of Canada found that, despite the race-based distinction of the communal fishing licence, the Pilot Sales Program has an ameliorative or remedial purpose and targets a disadvantaged group, namely Aboriginal peoples. More specifically, the objectives of the program include “negotiating solutions to [A]boriginal fishing rights claims, providing economic opportunities to native bands and supporting their progress towards self-sufficiency.” Furthermore, the Court found that
…the evidence shows in this case that the bands granted the benefit were in fact disadvantaged in terms of income, education and a host of other measures. This disadvantage, rooted in history, continues to this day. The communal fishing licence, by addressing long-term goals of self-sufficiency and, more immediately, by providing additional sources of income and employment, relates to the social and economic disadvantage suffered by the bands (Kapp at para. 59).
The Court found that the Pilot Sales Program is protected by section 15(2), and therefore, does not violate the equality guarantee of section 15. As a result, Aboriginal fishing rights were upheld in this instance, but at the same time, substance was given to the interpretive meaning of section 15(2).
Implications of Kapp for Aboriginal Rights and Reconciliation
The Kapp ruling also holds significance for Aboriginal reconciliation as embodied under section 25 of the Charter, which in turn, impacts the Charter’s equality provisions under section 15. Aboriginal reconciliation seeks to balance Canadian legislative authority and the sovereignty of the Crown with the prior occupation of Aboriginal peoples through the negotiation of treaties or agreements. Section 25 of the Charter confers no new rights, but provides that Charter rights and freedoms must not “abrogate or derogate from any [A]boriginal, treaty or other rights or freedoms that pertain to the [A]boriginal peoples of Canada.” Section 25 “serves the purpose of protecting the rights of [A]boriginal peoples where the application of the Charter protections for individuals would diminish the distinctive, collective and cultural identity of the [A]boriginal group” (Kapp at para. 89). Similarly, “legislation that distinguishes between [A]boriginal and non-[A]boriginal people in order to protect interests associated with [A]boriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny” (Kapp at para. 104). By extension, the “other rights or freedoms” in section 25 are expansive and include
…statutory rights which seek to protect interests associated with [A]boriginal culture, territory, self-government,…and settlement agreements that are a replacement for treaty and [A]boriginal rights. …The inclusion of statutory rights and settlement agreements pertaining to the treaty process and pertaining to [I]ndigenous difference is consistent with the jurisprudence of this Court (Kapp at paras. 105-106).
Bastarache J. found that, while section 25 does not create rights, it is nevertheless foundational to the accommodation and recognition of Aboriginal interests, including the promotion of Aboriginal reconciliation through settlement agreements and the treaty process (Kapp at para. 106). For these reasons, Bastarache J. found that section 25 barred the appellants’ constitutional challenge under section 15.
Ultimately, the Court’s findings and the concurrent judgment of Bastarache J. arguably accord greater protection to Aboriginal rights and reconciliation when balanced against the asserted equality rights of the appellants. Kapp provides more expansive protection of Aboriginal rights in general, not only under section 25, but also in the context of substantive equality as embodied in section 15(2) of the Charter. The implications of this ruling are arguably far-reaching in two important ways: first, a new test has been created that gives interpretive meaning to section 15(2) in advancing substantive equality for disadvantaged groups, notably Aboriginal peoples in this instance; and second, the protection of Aboriginal and treaty rights, as a precondition to achieving Aboriginal reconciliation, has been expanded further under section 25.