Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 485

Date: 20021210

Docket: A-771-00

Neutral citation: 2002 FCA 485

CORAM:        LINDEN J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

CHIPPEWAS OF NAWASH FIRST NATION,

PAUL JONES, and CHIEF RALPH AKIWENZIE

                                                                                                                                                     Appellants

                                                                                 and

HER MAJESTY THE QUEEN, as represented by

THE MINISTER OF FISHERIES AND OCEANS and

THE MINISTER OF INDIAN AFFAIRS AND

NORTHERN DEVELOPMENT

                                                                                                                                               Respondents

                                          Heard at Toronto, Ontario, on November 19, 2002.

                                Judgment delivered at Ottawa, Ontario, on December 10, 2002.

REASONS FOR JUDGMENT BY:                                                                                      LINDEN J.A.

CONCURRED IN BY:                                                                                                         SEXTON J.A.

                                                                                                                                            SHARLOW J.A.

Date: 20021210

Docket: A-771-00

Neutral citation: 2002 FCA 485

CORAM:        LINDEN J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

CHIPPEWAS OF NAWASH FIRST NATION,

PAUL JONES, and CHIEF RALPH AKIWENZIE

                                                                                                                                                     Appellants

                                                                                 and

HER MAJESTY THE QUEEN, as represented by

THE MINISTER OF FISHERIES AND OCEANS and

THE MINISTER OF INDIAN AFFAIRS AND

NORTHERN DEVELOPMENT

                                                                                                                                               Respondents

                                                        REASONS FOR JUDGMENT

LINDEN J.A.

INTRODUCTION

[1]                 This is an appeal from the trial decision of Madam Justice Dawson ("Trial Judge"), which dismissed the appellants' claim alleging a violation of section 15(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter") and a breach of fiduciary duty by the federal government, both arising from the exclusion of the appellants from a federal program, the Aboriginal Fisheries Strategy ("AFS").

[2]                 The main issue in this case is whether or not the government can exclude the Chippewas of Nawash First Nation from the AFS without infringing subsection 15(1) of the Charter. The parties have arranged to litigate only the subsection 15(1) issue, leaving for another day, damages matters and the section 1 arguments, if necessary.

FACTS

[3]                 The appellant, the Chippewas of Nawash First Nation ("Nawash People"), is a band of Ojibwa Indians whose reserve occupies Cape Croker, which juts out into Georgian Bay, Lake Huron, from the Bruce Peninsula, in the province of Ontario. The individual appellants are members of the Nawash People. Chief Akiwenzie has been Chief of the Nawash People since 1989. Paul Jones is resident on the reserve, and is described as a long-time fisherman.

[4]                 The respondent Minister of Indian Affairs and Northern Development is the federal Minister responsible for administering the Indian Act, R.S.C. 1985, c. I-5. The respondent Minister of Fisheries and Oceans administers the impugned AFS on behalf of the federal government.

[5]                 The ancestral homeland of the Nawash People includes Cape Croker and a number of offshore fishing islands. Fishing in Georgian Bay has been conducted by the Nawash People since time immemorial, and is still very important to the community for both economic and cultural reasons. The respondents do not dispute that in addition to their right to fish for food, social and ceremonial purposes (recognized by the Supreme Court of Canada in R. v. Sparrow, [1990] 1 S.C.R. 1075) the Nawash People have an Aboriginal right to a commercial fishery in Georgian Bay (recognized in R. v. Jones (1993), 14 O.R. (3d) 421 (Ont. Prov. Div.).

[6]                 On June 29, 1992, the Minister of Fisheries and Oceans announced a federal program, called the AFS, designed to "stabilize the fishery and to increase economic opportunities for First Nations". The AFS was the foundation for what the Minister called a new "social contract" among government, Aboriginal people, and non-native fishing groups after Sparrow.

[7]                 The AFS aims to enhance opportunities in Canadian fisheries for Aboriginal people while at the same time achieving predictability, stability and enhanced profitability for all participants in those fisheries. The AFS was initially designed to expend $140 million over a four-year period. However, in 1996, after a review of the program which stated that, through partnering arrangements with Aboriginal fishing authorities, the management of Aboriginal fishing had been greatly improved, the government decided to continue the program under the existing terms and conditions. There is no fixed end date of the AFS at this time.

[8]                 The appellants have been denied access to AFS funding, as have other Aboriginal groups that pursue inland fishing. Almost all AFS money has been allocated to assist Aboriginal persons and groups fishing in tidal waters, 70% being set aside for British Columbia, and the rest for Atlantic Canada and the North.

[9]                 On February 16, 1993, officials from the federal Department of Fisheries and Oceans ("DFO") told representatives of the Nawash People that they are not eligible for AFS funding because the AFS does not apply to inland fisheries within provincial boundaries. The federal government delegated the management of those fisheries to the provinces at the turn of the century.

[10]            The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 ("Constitution Act 1867") has been interpreted to provide that jurisdiction over inland fisheries is shared between the federal and provincial governments. Subsection 91(12) confers on the federal government jurisdiction over sea coast and inland fisheries. Subsection 92(13) confers on the provinces jurisdiction over property and civil rights. In their agreed statement of facts, the parties outline the origin of the federal government's delegation of its inland fishery power:

A decision of the Judicial Committee of the British Privy Council, Attorney General for the Dominion of Canada v. The Attorney General for the Province of Ontario, Quebec and Nova Scotia, [1898] A.C. 700 on a constitutional reference to the courts by the Governor General of Canada, in1894, dealt with respective federal and provincial proprietorship of and jurisdiction over fisheries. Following that decision, on or about February 27, 1899, a memorandum submitted by the federal Minister of Marine and Fisheries for the approval of the Governor General of Canada called for dispensing with the services of certain federal fisheries officers in Ontario, and leaving the administration of certain fisheries matters in Ontario to provincial authorities. (Crown Doc 4) On or about May 8, 1926, a federal Order-In-Council was passed transferring certain federally-owned fish hatcheries in Ontario to the provincial Crown (Crown Doc 5).

Certain responsibilities with respect to the administration of inland fisheries in Ontario have been delegated to the Ontario Minister of Natural Resources by the Ontario Fishery Regulations, S.O.R. /89-93, and the Aboriginal Communal Fishing Regulations, S.O.R. /93-332. Thus, through the administrative arrangement of 1899, Ontario has managed nearly all aspects of its own non-tidal fisheries for over a century. The federal DFO has retained little involvement in the management of the fisheries in the non-tidal waters of Ontario.

[11]            The parties agree that the only basis upon which the appellants have been denied AFS funding is that they operate an Aboriginal fishery in an area where the management of inland fisheries purports to have been delegated by the federal government to the province of Ontario.

[12]            The appellants started an action in the Federal Court seeking, among other remedies, a declaration that the AFS violates section 15 of the Charter by depriving the Nawash People of equality before and under the law, denying them equal protection under the law and discriminating against them on the basis of their geographic location.

[13]            The learned Prothonotary Hargrave ordered, on consent, that this case only deal with the issues of whether there has been a violation of the appellants' equality rights or a breach of the fiduciary duty. As a result this case was litigated at trial without regard to section 1 of the Charter. It was agreed that should the matter of damages arise, it would be dealt with by a reference following the trial. Similarly, it was also agreed that if necessary, a section 1 analysis would also be conducted by reference.

[14]            The Trial Judge applied the framework set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 for conducting an analysis under subsection 15(1) of the Charter and concluded that neither the AFS, nor the exclusion of the Nawash People from its application, infringed subsection 15(1) of the Charter.

SECTION 15(1)

[15]            Before conducting the three broad inquiries required to adjudicate a discrimination claim, the Trial Judge correctly stated that the purpose of section 15(1) (as set out in Law at para. 51) is to "prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice".

[16]            The three-prong test, articulated at paragraph 88 of Law, asks the following questions:

             (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

I will examine each of these matters in turn after I review the Trial Judge's treatment of the comparator group in this case.

Comparator Group

[17]            The Trial Judge recognized that the equality guarantee within subsection 15(1) of the Charter is a comparative concept, and that each of the three inquires should be performed on the basis of a comparison with another relevant group or groups. The claimant is generally permitted to choose the comparator, but a court, where warranted, may refine the comparator presented by the claimants.

[18]            At trial the appellants argued that the comparator should be Aboriginal fishing communities which have access to, or are eligible for, AFS benefits. The respondents argued that the comparator group should be refined to those Aboriginal peoples who can satisfy the necessary precondition that they are prepared to enter into a co-management agreement with the DFO, and who are in a location where the DFO has authority to manage the fishery. The Trial Judge, nonetheless, was not persuaded that any refinement of the comparative group put forward by the appellants was necessary.

[19]            The appellants, however, argued before this Court that the Trial Judge erred in not properly applying the appropriate comparator group. Even though the Trial Judge accepted the comparator group chosen by the appellants, they submit that at crucial stages of the section 15 analysis she effectively reverted back to the jurisdiction-based comparator group suggested by the respondent. This happened, they submit, when the Trial Judge reasoned that, although the AFS excludes Aboriginal communities who fish in inland waters, the program is not discriminatory because the appellants would not be able to obtain an AFS agreement due to the purported jurisdictional inability of the federal government to regulate the inland fishery.

[20]            The appellants directed us to the recent decision of the Supreme Court of Canada in Lavoie v. Canada, 2002 S.C.C. 23 for the proposition that a division of powers analysis does not belong in a contemporary section 15 inquiry. Justice Bastarache, who wrote the majority judgment in that case, refers to Justice Iacobucci's comments in Law, supra about the necessity to locate the appropriate comparator group, at paragraph 40, where he states:

Not only is it normally the claimant's prerogative to choose the appropriate comparator group, but the court is only to step in where "the differential treatment is not between the groups identified by the claimant, but rather between other groups"...By contrast, the type of scrutiny proposed by the respondents - namely, to choose comparator groups based on jurisdictional considerations - finds no support either in Law or in any other s. 15(1) case. On the contrary, the very essence of an entrenched bill of rights such as the Charter is to analyse differential treatment as an issue of equality rights, not of federal versus provincial jurisdiction.   

In Lavoie, a case which considered the constitutionality of a statutory provision which favoured Canadians for employment with the federal public service, the respondents argued that non- citizens and citizens (the comparator groups suggested by the appellants) could not be validly compared for the purposes of section 15(1) because non-citizens are inherently on unequal footing with citizens by virtue of federal citizenship legislation and the Constitution, and as such do not merit equal treatment. In that case, Bastarache J. stated that the determination of whether citizens are an appropriate comparator group was an inquiry best dealt with as a contextual factor under the third branch of the Law analysis, but subsequently found the impugned provision to violate section 15(1) precisely because it distinguished between citizens and non-citizens in the context of securing employment.

[21]            The principles which emanate from Lavoie constitute some of the Supreme Court of Canada's most recent teachings about the proper application of section 15, and as such are relevant to this appeal. They must not, however, be mechanically applied to this case without regard to the factual differences between the two cases. With that caveat, Bastarache J.'s directive that equality claims are to be examined through a comparative lens instead of using a jurisdictional analysis must be respected. Thus, I must examine whether the actual comparator group used by the Trial Judge conflicts with Justice Bastarache's comments.                  

[22]            As I have already said, the Trial Judge accepted the comparator group offered by the appellants: Aboriginal fishing communities which have access to, or are eligible for, AFS benefits. The appellants argue that she implicitly used the comparator group for which the respondent lobbied, by concluding that the AFS cannot apply in Ontario, and thus is not discriminatory. In other words, the appellants contend that she dealt with their claim by comparing the situation of the Nawash People to that of Aboriginal peoples who can satisfy the necessary precondition that they are prepared to enter into a co-management agreement with the DFO, and who are in a location where the DFO has authority to manage the fishery.

[23]            The Trial Judge's explanation of why the AFS is not discriminatory uses language reminiscent of a division of powers analysis. While Lavoie teaches that, in a Charter case, equality concerns should not be trumped by jurisdictional considerations, the Trial Judge's discussion of jurisdictional issues does not amount to an appealable error in this context, because that discussion took place only after she determined the fate of the appellants subsection 15(1) claim.      

[24]            The Trial Judge explicitly rejected the jurisdiction-based comparator group suggested by the respondents, and acknowledged that the effect of the AFS, as it has been applied, is to draw a formal distinction between the appellants and the comparator group. She went on to conclude, however, at paragraph 52, "that the distinction drawn by the AFS is [not] based upon the personal characteristic of the plaintiffs' association with, and residence among, their own First Nation". From a quick perusal of the trial decision, one may think that the Trial Judge incorporated division-of-powers concepts into her Law analysis, because after she concluded that the distinction made by the AFS is not based on a personal characteristic, she then considered the nature of the AFS (in paragraphs 56 to 74) before reiterating her conclusion that the Nawash people are not excluded from the AFS because of any personal characteristic. A careful read of the decision below reveals, nevertheless, that the Trial Judge's discussion of the jurisdictional basis for the distinction between the appellants and coastal groups eligible for the AFS happens only after she concludes the first inquiry under the Law analysis.

[25]            In this case the basis for the distinction was found not to be a personal characteristic, since, in the view of the Trial Judge, it is not the presence or absence of an ancestral connection with a particular First Nation and its land which determines eligibility for the AFS.    Accordingly, since this determination ended the analysis required, because a successful section 15 claim demands that the first inquiry mandated by Law be answered in the affirmative, the Trial Judge did not have to consider the jurisdictional issue to resolve the case. Moreover, because the Trial Judge's conclusion with respect to the first step in Law proved fatal to the appellant's discrimination claim, her subsequent application of the second and third steps in Law were conducted merely "for the sake of completeness". As such, then, her remarks about whether the AFS makes a distinction on the basis of analogous grounds, the second step, or functions to stereotype, or discriminate against the appellants, the third step, constitute obiter dicta.

[26]               Although the language used by Justice Dawson to describe the "pith and substance" of the AFS is problematic, this language was actually introduced by the appellants during the trial. The appellants themselves advanced jurisdictional arguments about the nature of the AFS, as noted by the Trial Judge at paragraph 76:

The plaintiffs argued that the federal jurisdiction over conservation needs in inland waters provide a solid jurisdictional basis for applying the AFS to Ontario's inland fisheries, and also pointed to the federal jurisdiction over "Indians" under subsection 91(24) of the Constitution Act, 1867.

Consequently, it is somewhat inconsistent for the appellants to now fault the Trial Judge for referring to jurisdictional considerations, since the appellant's submissions at trial advocated these considerations.      

[27]               In addition, Professor Peter Hogg has stated that, as a minimum, federalism must preclude an argument that involves comparing the law of one province with the law of another province: federalism can be an exception to the guarantee of equality, to a limited extent (see Peter W. Hogg, Constitutional Law of Canada, Loose-Leaf Edition, Vol. 2 (Scarborough: Carswell Thomson Professional Publishing, 1997) at 52-62).

[28]            Finally, even if the jurisdictional aspects of the Trial Judge's reasons were to be an error, I do not believe that it would effect the correctness of the result at which she arrived, because, as she correctly concluded, there are no valid personal characteristics, analogous grounds or discriminatory effect on which to base this subsection 15(1) Charter claim.

A.        Does the AFS Impose Differential Treatment on the Appellants based on a Personal      Characteristics?

[29]            As I have already noted, the Trial Judge dealt with the first inquiry from Law by concluding that the AFS operates to exclude the Nawash People, but not because of their reserve location, which the appellants maintain is a personal characteristic. Rather, the Trial Judge found that the Nawash People were excluded from the AFS because of the fact that the Province of Ontario regulates the fishery in question, and as such there is no fishery around their reserve which the DFO can allocate and manage.   

[30]            The appellants argued that their deeply ingrained ancestral connection with, and residence among, their own First Nation, constitutes a personal characteristic upon which they have been excluded from the AFS. The Trial Judge, however, rejected this submission, because she found that the Aboriginal communities eligible to participate in the AFS also share this same characteristic.

[31]            The appellants contend that the Trial Judge's approach ignores the particular relevance of the Georgian Bay and Lake Huron to the Nawash People, and the way the attachment to those particular waters and lands forms an immutable or constructively immutable personal characteristic for them. Location and residence, they argue, are fundamental to Aboriginal and treaty rights to fish. These are not portable rights, but are intrinsically tied to residence. Also, it was submitted that an Aboriginal person's attachment to traditional lands and waters is a personal characteristic of that Aboriginal person: something which is essential to that Aboriginal person's identity.

[32]            I agree with the Trial Judge's conclusion that there is no personal characteristic upon which to base the formal distinction found to exist between the appellants inland Aboriginal band and the coastal bands who have access to the AFS. The appellants submitted two possibilities to operate as the necessary personal characteristic upon which to base a section 15(1) claim: (1) their deeply ingrained ancestral association with, and residence among, their own First Nation; and (2) their ancestral connection to a specific locale or location of their residence.

[33]            I have much sympathy for the appellants' position, and understand that Aboriginal peoples have a special relationship with the land - the land constitutes a large part of their identity as a people. A common belief of many Aboriginal societies is that the Creator placed their people upon this land for a reason, and that the earth is their Mother, the animals their spiritual kin. This is explained by John Borrows and Leonard Rotman in Aboriginal Legal Issues: Cases, Materials and Commentary (Toronto: Butterworths, 1998) at 1-3 as follows:

The most fundamental of those rights is the right to their identity as Aboriginal people. Since that identity was derived largely from the land they used and occupied before the arrival of the Europeans, they believe they had - and still have - certain rights in regard to the land, including continuing habitation and use of the land, whether it be for hunting, fishing, trapping, gathering food and medicines, or for any other traditional pursuits.

[34]            However, while I recognize the importance of land to Aboriginal peoples, I have not been persuaded that the Trial Judge committed an appealable error when she concluded that the appellants are not excluded from the AFS on the basis of a personal characteristic.

[35]            It is unnecessary for me to scrutinize the Trial Judge's application of the two remaining stages of the Law test in order to dispose of this appeal, because the effect of upholding the Trial Judge's conclusion with respect to the first stage of Law leads to the conclusion that the federal government can exclude the Nawash People from the AFS without infringing section 15 of the Charter. However, because the parties made submissions to us about the Trial Judge's findings with respect to analogous grounds and discrimination, and because the findings below should be considered in light of the Lavoie case, I will deal briefly with the two remaining stages of the her Law analysis.

B.          Is the Distinction Based on Analogous Grounds?                       

[36]            The Trial Judge concluded that the appellants were not "subject to differential treatment on the basis of one or more of the enumerated and analogous grounds". The appellants asserted that two separate, but related, analogous grounds of discrimination were at issue: (1) Aboriginality/residence; and, (2) province of residence.

[37]            With regards to the first analogous ground, the appellants argued that the AFS distinguishes between Aboriginal people whose reserves and bands are on the coasts, and those whose reserves and bands are in other parts of Canada. The Trial Judge, however, agreed with the respondents who argued that the Supreme Court of Canada in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 did not recognize Aboriginality-residence per se as an analogous ground, but only recognized a limited subset of this analogous ground, "off-reserve status". This is correct. The Trial Judge also rejected the second analogous ground suggested by the appellants because the Supreme Court has not to date recognized province of residence as an analogous ground. This too is correct. It should be noted however that, in R. v. Turpin, [1989] 1 S.C.R. 1296, the Supreme Court left open the question of whether province of residence could be an analogous ground.

[38]            The majority judgement in Corbière, written by McLachlin J. and Bastarache J., limited the analogous ground of Aboriginality-residence to off-reserve status. The issue in Corbière was a narrow one: whether a statutory provision which excluded off-reserve members of an Indian band from voting in band elections violates section 15(1) of the Charter. The majority agreed with L'Heureux-Dubé J.'s conclusion, in her concurring reasons, that Aboriginality-residence is an analogous ground, but warned that this conclusion should not be interpreted to mean that "ordinary residence" is an analogous ground. The majority stated, at paragraphs 14 and 15:

L'Heureux-Dubé J. ultimately concludes that "Aboriginality-residence" as it pertains to whether an Aboriginal band member lived on or off the reserve is an analogous ground. We agree. L'Heureux-Dubé J.'s discussion makes clear that the distinction goes to a personal characteristic essential to a band member's personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band members only at great cost, if at all.

Two brief comments on this new analogous ground are warranted. First, reserve status should not be confused with residence. The ordinary "residence" decisions faced by the average Canadian should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming a choice is possible.

[39]            The notion of whether geography, or place of residence constitutes an analogous ground was also dealt with recently by this Court in Archibald v. Canada, [2000] 4 F.C. 479. That case considered whether the compulsory pooling provision of the Canadian Wheat Board Act, which requires wheat producers living in certain areas of Canada to sell all their wheat to the Canadian Wheat Board, and prohibits them from selling their wheat or barley in another province or outside of Canada, violates the appellants' constitutional rights. Justice Rothstein, who wrote the reasons in Archibald was not persuaded that place of residence was an analogous ground. In applying Corbière to the case before him, he made the following helpful comments, at paragraph 23:

Corbière implies that residence must be linked to something else that is fundamental to one's identity, that is immutable, or is at least constructively immutable. Thus, it is insufficient for purposes of identifying an analogous ground that the location of an individual's residence and farm is within the designated area or, indeed, at any place in Canada. Something more is needed.

[40]            While the court in Corbière cautioned that its finding of Aboriginality-residence as an analogous ground should not be expanded to the ordinary residence decisions made by average Canadians, it cannot be said that the Nawash People are average Canadians who make ordinary decisions about their residence. Like the claimants in Corbière, the place of residence of the Nawash People goes to the essence of the band members' identities. Because of the connection the Nawash People have with the particular land and waters in their geographic region, which militates against these Aboriginal people leaving their community for a costal community, this characteristic is no less constructively immutable than religion or citizenship. For that reason it is conceivable that the analogous ground of Aboriginality-residence recognized in Corbière might be expanded to on-reserve status in situations where the claimants can show that "something more", for example, the appellants' special connection with their particular residence. However, in light of the Trial Judge's finding with respect to the first Law inquiry, which I have affirmed, it is unnecessary for me to decide that question.

C.         Is the Differential Treatment Discriminatory?

[41]            Recognizing that this third inquiry of the Law analysis is both subjective and objective, the Trial Judge examined the four contextual factors which form the basis of the third stage of the discrimination analysis to arrive at the conclusion that the AFS is not a discriminatory program. These factors are: (i) pre-existing disadvantage, stereotyping, prejudice, or vulnerability; (ii) the correspondence, or lack thereof, between the ground(s) on which the claims is based and the actual need, capacity, or circumstances of the claimant or others; (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity.

(i) Pre-existing disadvantage

[42]            With respect to the first contextual factor the Trial Judge was not convinced that the AFS functions by device of stereotype. Rather, she found, at paragraph 112, that the appellants' rights were only "denied on a basis which reflects the reality of the right of the province of Ontario to legislate and regulate with respect to the fishery as part of its jurisdiction over property and civil rights". Because it was held that the AFS is based on co-management of Aboriginal fisheries as between the DFO and local Aboriginal peoples, she found that it cannot apply in Ontario.    Accordingly, it was concluded that the AFS does not have the effect of perpetuating or promoting the view that the Appellants are less capable, or less worthy of recognition or value as a human being.

[43]            The Court in Law noted that the claimant's association with a group which has historically been more disadvantaged will not be conclusive of a violation under section 15(1), where differential treatment has been established. The determinative question, instead, is whether the distinction actually and truly affects the dignity of the claimant.

[44]            Although the appellants are certainly members of a group who have been historically discriminated against and disadvantaged, I have not been convinced that the distinction in question truly affects their dignity. The appellants are not included in the AFS program because they are located in a geographic area not encompassed by the federal jurisdiction and the DFO's area of regulation. This exclusion, which may, as the appellants contend, seem unjust, in no way perpetuates a stereotype that the Nawash People are less worthy. In fact, it does not perpetuate any of the stereotypes which formed the basis of the historical discrimination faced by Aboriginal peoples. It merely distinguishes on the basis of inland fishing versus coastal fishing. Not every distinction created by legislation, or a governmental program, gives rise to discrimination.

(ii) Correspondence Between the Program and the Claimant's Actual Circumstances

[45]            As noted by the Trial Judge, it is easier to establish discrimination where an impugned program does not account for the claimant's actual situation. In doing her analysis under this contextual factor, the Trial Judge found that the AFS takes account of the actual circumstances of those Aboriginal communities located in the areas where DFO manages the fishery. The appellants argue that the Trial Judge should have instead asked whether the AFS takes account of their specific situation. Because the AFS is a targeted, ameliorative program, a concept which is discussed in more detail below, in my view, it is not reasonable to require that the DFO should have implemented the program with an eye to the specific needs, circumstances and capacities of the Nawash People.

(iii) Ameliorative Purpose

[46]            With respect to the third contextual factor, the ameliorative purpose of the AFS, Justice Dawson adopted the Supreme Court of Canada's analysis in Lovelace v. Canada, [2000] 1 S.C.R. 950 (SCC): that the ameliorative purpose principle should be extended to situations where disadvantage, stereotyping, prejudice, or vulnerability describes the excluded group. That principle teaches that being excluded from a targeted or partnership program is less likely to be associated with stereotyping or conveying the message that the excluded group is less worthy of recognition than being excluded from a general benefits program. In Lovelace, the Court explains, at paragraph 60, that an underinclusive ameliorative program is not inconsistent with the purpose of section 15(1):         

The application of the substantive equality analysis cannot be reduced to simple analytical formulae. For, while it is often true that distinctions may produce discrimination, there are many other situations where substantive equality required that distinctions be made in order to take into account the actual circumstances of individuals as they are located in varying social, political, and economic situations. This is why this Court has long recognized that the purpose of s. 15(1) encompasses both the prevention of discrimination and the amelioration of the conditions of disadvantaged persons...    Accordingly, there has been an equally longstanding recognition that an underinclusive ameliorative law, program or activity may violate the constitutional equality interest...However, until recently, the Court's consideration of underinclusiveness has been limited to the review of universal or generally comprehensive benefit schemes.

[47]            Lovelace involved a program called the First Nations Fund ("FNF"), a program that directed the funds from a casino project to all aboriginal bands registered under the Indian Act in Ontario. In that decision, written by Justice Iacobucci, the FNF is described as a targeted ameliorative program based on a partnership between government and First Nations representatives. Iacobucci J. carefully emphasizes the partnership-nature of the casino project to distinguish it "from a universal or generally comprehensive benefits program".

[48]            Not only was the FNF ameliorative, it was also aimed at ensuring that on-reserve commercial casino gaming was undertaken in compliance with the strict regulations applicable to the supervision of gaming activities. Thus, the FNF in Lovelace was very similar to the AFS program in question in this case. As the Trial Judge found, the AFS has an ameliorative aim to improve the life of Aboriginals, as well as to regulate and manage the fishery industry. As such it is a targeted, partnered program rather than a general benefits program. For this reason, this appeal is on all fours with the facts in Lovelace, and the Trial Judge did not err in holding that the AFS is an ameliorative program similar to the program upheld in Lovelace.

[49]            The appellants in Lovelace argued that they had precisely the same need to ameliorate poor social, cultural and economic conditions in their own communities as those communities with access to the First Nations Fund. The Court concluded, however, that more than a common need is necessary to establish that an ameliorative program discriminates contrary to section 15(1). Simply put, the appellants in Lovelace, like the appellants in this case, did not occupy the land-base which was covered by the impugned program.

[50]            Lovelace dealt with a situation, similar to this one, in which both the claimants and the targeted group are equally disadvantaged. Faced with that situation, the Court in Lovelace felt it appropriate to extend the ameliorative purpose analysis to these situations where disadvantage, stereotyping, prejudice or vulnerability also describes the excluded group or individual.    In doing so the Court adopted the view that section 15(2) of the Charter is confirmatory and supplementary to section 15(1), and acts as an interpretative tool of section 15(1). Accordingly, section 15(1) embraces ameliorative programs of the kind that are contemplated by section 15(2), and, therefore, these ameliorative programs can be included under the section 15(1) analysis, even if the excluded group is not an advantaged group in comparison with those ameliorated by the program.

(iv) Nature of Interest Affected

[51]            With respect to the fourth contextual factor, the Trial Judge refused to find that the appellants are so differently situated from coastal Aboriginal communities, who are eligible to participate in the AFS, that they have suffered severe and localized consequences from being excluded from the program. She concluded that the negative impact of exclusion was not "direct and massive" as the appellants argued. According to the Trial Judge's interpretation of the now challenged evidence adduced about the appellants' participation in the Bruce Peninsula Fishery discussions, the appellants had not been excluded from the opportunity to enter into an agreement with respect to the co-management of their fishery, and thus had not been denied access to related government funding.

Conclusion on Discrimination    

[52]            After applying the contextual factors, the Trial Judge found that the AFS is not a discriminatory program. She was not persuaded that a reasonable person, in circumstances similar to those of the Nawash People, would find that the appellants' dignity was demeaned as a result of being excluded from the AFS.

[53]            Differential treatment will not likely constitute discrimination within the purpose of section 15(1) where it does not violate the human dignity or freedom of a person or group, and, in particular, where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. The Court in Law defined "human dignity" as the feeling of self-respect and self-worth, as the realization of personal autonomy and self-determination. The Court elaborated on this definition, and described ways in which human dignity is damaged, at paragraph 51:

It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

Using the concept of human dignity explained in Law, the Trial Judge thoroughly examined the contextual factors to determine whether the exclusion of the appellants from the AFS has the effect of demeaning their dignity. Recognizing that the focus of the inquiry is both subjective and objective, she examined the factors from the perspective of the appellants before concluding that, viewed from the perspective of the reasonable person, similarly situated with the appellants, the exclusion from the AFS had not demeaned the appellants' human dignity.

[54]            Although the contextual factors are to be assessed subjectively, from the position of the appellants, a court must be satisfied that the claimant's assertion that the differential treatment demeans his or her dignity is supported by an objective assessment of the situation. Accordingly, all of that individual or group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the program which imposes differential treatment has the effect of demeaning his or her dignity.

[55]            In Lavoie, the Court described the subjective-objective test, at paragraph 47, as follows:

In measuring the appellants' subjective experience of discrimination against an objective standard, it is crucial not to elide the distinction between the claimant's onus to establish a prima facie s. 15(1) violation and the state's onus to justify such a violation under s. 1. Section 15(1) requires the claimant to show that her human dignity and/or freedom is adversely affected. The concepts of dignity and freedom are not amorphous and, in my view, do not invite the kind of balancing of individual against the state interest that is required under s. 1 of the Charter. On the contrary, the subjective inquiry into human dignity requires the claimant to provide a rational foundation for her experiences of discrimination in the sense that a reasonable person similarly-situated would share that experience.

[56]            According to this approach, the claimant's subjective experience is examined through an objective lens so that subsection 15(1) is not found to be violated every time a claimant alleges that his or her dignity has been harmed. Even though Chief Akiwenzie testified that his people felt left out and forgotten when they learned that the AFS did not apply to them, in my view, the Trial Judge did not err in concluding that a reasonable person, in circumstances similar to the Nawash People, would not feel that the exclusion from the AFS imposes differential treatment which has the effect of demeaning one's dignity.

[57]            Like the FNF, the AFS is targeted at ameliorating the conditions of disadvantage for specific Aboriginal groups. This is another detail that comes into play in assessing whether human dignity is harmed. As such, I refer to the principle from Lovelace which states that exclusion from an ameliorative program is not likely to be associated with stereotyping or stigmatization or conveying the message that the excluded group is less worthy of recognition and participation in the larger society. The targeted arrangement and circumstances surrounding the implementation of the AFS do not result in any lack of recognition of the appellants as a self-governing community. This factor consequently militates against a finding that the AFS has the effect of demeaning the appellants' human dignity.

[58]            The fact that the AFS has an ameliorative purpose, and the effect of this finding, needs further elaboration. Specifically, where the ameliorative purpose or effect of a program like this one is in harmony with the purpose of subsection 15(1) of the Charter, the exclusion of a group like the appellants from that program is not likely to violate human dignity. Although groups like the Nawash People, who find themselves excluded from targeted programs like the AFS, may legitimately feel left out and disempowered, to find that such a program violates the equality provisions of the Charter might serve as a disincentive to the creation of future targeted programs designed to ameliorate the depressed social and economic conditions of Canada's Aboriginal communities.    Section 15 is a tool to foster equality by eliminating discriminatory laws or government practices that unfairly privilege one group in society over another. Although the section 15 equality jurisprudence has evolved since 1985 to recognize more subtle forms of discrimination, and although analogous grounds upon which discrimination can be based have been expanded, this provision was not designed to thwart ameliorative programs aimed at eradicating disadvantage in particular situations. This is not to say that section 15 could not be used to rectify the discriminatory effects of an underinclusive program which is found to be at odds with the purpose of subsection 15(1), but the AFS is not such a program

[59]            To recap, I find that the Trial Judge did not err in her application of Law to the appellants' subsection 15(1) claim. I agree with her conclusion that the distinction drawn by the AFS, between inland bands such as the Nawash People and coastal Aboriginal fishing communities, is not one that is based on a personal characteristic. Like the Trial Judge, I have also refrained from deciding whether the analogous ground of Aboriginality-residence recognized in Corbière should be expanded to include on-reserve status. And finally, I agree with the Trial Judge's finding that the appellants' dignity has not been harmed by being excluded from the program. Consequently, the Trial Judge was correct to find that the AFS is not a discriminatory program contrary to subsection 15(1).     

[60]            I will now briefly deal with the subsidiary issues raised in this appeal.

FIDUCIARY DUTY

[61]            The appellants argued before the Trial Judge that the delegation of the administration of fisheries management to Ontario constituted a breach of the Crown's fiduciary duty because the Crown treated comparable beneficiaries unequally and favoured the respondents' own administrative convenience and economic concerns over the concerns of the Crown's beneficiaries. The respondents admitted that the Crown has a fiduciary relationship with the Aboriginal peoples of Canada, but argued that the Court was obliged to assess the specific relationship to determine if circumstances exist which give rise to a fiduciary duty. The Trial Judge accepted the respondents' submission, and, after examining two approaches (reasonable expectation and ceding power) to fiduciary obligations, concluded that no fiduciary obligation to the Nawash People existed with respect to the AFS because there was no evidence of any statute, contract, unilateral undertaking, or conduct pointing to a fiduciary relationship in this context.

[62]            On appeal the appellants argued that evidence adduced at trial establishes that they both ceded power to the respondents and had a reasonable expectation that their fishing rights would be protected by the federal, and not the provincial, government. The responsibility of the federal Crown for the welfare of Aboriginal peoples, they argue, is one that cannot be subordinated to a provincial government, irrespective of where the Aboriginal and treaty rights might be exercised.

The appellants allege that when implementing a program to facilitate or recognize Aboriginal rights in Canada, there is a fiduciary duty upon the Crown to see that the program applies equally

to all Aboriginal peoples who hold those rights. They argue that the fiduciary duty arose simply out of the setting up of the AFS program so as to recognize the rights articulated by the Sparrow decision.

[63]            The appellants arguments are unsupported by the evidence adduced at trial. The AFS is a program designed to facilitate the management of Aboriginal fishing in fisheries managed by DFO in a manner consistent with ensuring sufficient access of Aboriginal peoples to the fishery resource to satisfy their food, social and ceremonial needs as well as their desire for co-operative management of their fishing. The Trial Judge correctly applied the doctrine of "reasonable expectations" and the "ceding of power-vulnerability" approach to determine whether a fiduciary duty is owed to the appellants with respect to the AFS. As a result, her determination that no such duty is owed in the context of the AFS should not be disturbed.

THE AFS IN ONTARIO

[64]            The appellants contend that the Trial Judge misapprehended the evidence and erred in law in finding that the federal government is unable to implement the AFS in the province of Ontario. The federal government, they say has refused to apply the AFS in Ontario not because of constitutional or legislative incompetence, but because of administrative and fiscal convenience.

[65]            The respondents contend that this argument is a "red-herring", and I tend to agree. In this case the appellants have focussed on the incentive aspect of the AFS, with little reference to the fact that a large part of the program entails negotiations between the Crown and the Aboriginal communities involved in the program. The effect of these negotiations is that Aboriginal access to the fishery in the participating communities is regulated and supervised. The Trial Judge found that no benefits flow from the AFS until an Aboriginal fishing agreement is negotiated with a particular community. Accordingly, the federally-run AFS only applies to bands located in areas where the DFO has control over the allocation of fishery resources. As the province of Ontario controls the allocation of fishery resources within its borders, the federal government would be encroaching on this delegated authority if it were to endeavour to implement the AFS in non-coastal areas like Georgian Bay. So, while it may be constitutionally possible for the federal government to alter its administrative arrangement with the provinces regarding the management of inland fisheries, subsection 15(1) does not require them to do this.

MEDIATED DISCUSSIONS

[66]            The appellants argued that the mediated discussions are irrelevant to their subsection 15(1) claim, and that the Trial Judge fundamentally erred in relying on them. Furthermore, they contend that the respondents unfairly relied on the "draft without prejudice" document, found to be inadmissible, to conduct their cross-examination of Chief Akiwenzie. This evidence, they say, was derived from the draft document, a derivative use which it is submitted is impermissible.

[67]            As the respondents pointed out, it was the appellants themselves who introduced into evidence the substance and content of these mediated discussions. Evidence of these discussions was adduced during the examination-in-chief of Chief Akiwenzie, and as a result, before cross-examination ever started, the Trial Judge was aware that a co-management arrangement for commercial fishing between the Nawash People and the province of Ontario was being negotiated. Moreover, the appellants did not object to any of the questions put to Chief Akiwenzie on cross-examination.

[68]            The Trial Judge relied on the evidence of the mediated discussion in considering the contextual factor "nature of the interest affected" in the final part of the Law analysis. From the evidence before her she said that she was not persuaded that the appellants were excluded from the opportunity to enter into a co-management agreement concerning their fishery. I agree with this approach. Further, I do not think the Trial Judge erred by considering evidence of the mediated discussions, adduced by the appellants, to determine whether the appellants' exclusion from the AFS resulted in severe and localized consequences. If there was any privilege attached to the mediated discussions, it was waived by the appellants who lead the evidence.

CONCLUSION

[69]            This appeal should be dismissed with costs.                                

                                                                                                                                               "A. M. Linden"             

                                                                                                                                                                  J.A.

"I agree,

J. Edgar Sexton J.A."

"I agree,

K. Sharlow J.A."

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                              A-771-00

STYLE OF CAUSE:                           Chippewas of Nawash First Nation et al v. The Queen

DATE OF HEARING:                         November 19, 2002

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR JUDGMENT BY:     LINDEN J.A.

CONCURRED IN BY:                          SEXTON, SHARLOW J.J.A.

DATED:                                                   December 10, 2002

APPEARANCES BY:                          Mr. Louis P. Strezos

Mr. Kent Roach

Mr. William B. Henderson                      For the Appellants

Ms. Dale Yurka

Mr. Peter Hajecek                                   For the Respondents

SOLICITORS OF RECORD:           Mr. Louis P. Strezos,

Toronto, Ontario

Mr. Kent W. Roach

Toronto, Ontario

Mr. William B. Henderson

Toronto, Ontario                                     For the Appellants

Ms. Dale Yurka

Mr. Peter Hajecek

Toronto, Ontario                                     For the Respondents