2014 QCCQ 10367, 2014 QCCQ 10367

Chisasibi Band (Chisasibi Eeyouch) c. Napash 2014 QCCQ 10367 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF CHISASIBI Criminal and Penal Division Nos. 640-72-004826-097 640-72-005024-098 640-72-005182-094 DATE: September 29, 2014 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN-PIERRE GERVAIS J.C.Q. ______________________________________________________________________ CHISASIBI BAND (Chisasibi Eeyouch) The prosecution - Respondent v.

PAUL NAPASH MICHAEL PETAWABANO ARTHUR COOPER Accused – Petitioners ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The petitioners in the case, who face charges under a by-law adopted by the respondent, instituted a proceeding asking the Court to declare unconstitutional and inoperative in their regard certain provisions of the said by-law. [ 2 ] In reply, the respondent raised a number of grounds, including one that, if it proved founded, would, as its main effect, lay waste to virtually all the arguments invoked by the petitioners. [ 3 ] It was therefore accepted that, in the circumstances, it was expedient to dispose of that reason beforehand, so as not to compel the parties to engage in a long debate without knowing whether it was relevant.

JG 2122 [ 4 ] The sole issue that this judgment must decide is whether a by-law adopted by the Chisasibi Band in the framework of the powers devolving to it is subject to the Canadian Charter of Human Rights and Freedoms . [1] [ 5 ] If the reply is affirmative, the debate can continue as it began, whereas in the opposite case, it will be considerably shortened. [ 6 ] Basically, here is what this case involves. [ 7 ] The prosecution is an entity constituted pursuant to the Cree-Naskapi (of Quebec) Act , [2] in keeping with the agreements entered into under the James Bay and Northern Québec Agreement.

Its role consists in ensuring the local administration of the territory devolving to it; to do so, it has, among other things, a regulatory power that enables it to legislate in various areas. [ 8 ] More specifically, it can enact administrative by-laws the territorial scope of which depends on the land attributed to it. [3] Besides the power to prohibit a particular activity, [4] the band, through its council, has a regulatory power that enables it to govern myriad subjects, amoung others public order and safety. [5] [ 9 ] More precisely, it is empowered to regulate the following (s. 45(1)( d )): . . .. (

v) the prohibition of the sale or exchange of alcoholic beverages, (vi) the possession or consumption of alcoholic beverages in public places, and . . . [ 10 ] In application of these provisions, and after following the referendum procedure required in regard to one of these sections, the respondent adopted, on November 14, 2008, By-law No. 2008-007, governing the possession and consumption of alcohol on the territory under its jurisdiction.

[ 11 ] The said by-law, the

short title of which is the Chisasibi Alcohol By-law , provides in particular that the consumption and possession of alcoholic beverages at any location on Band territory is prohibited. Furthermore, no one may manufacture, sell or trade alcoholic beverages or be intoxicated on that territory. [ 12 ] An offender is liable, in the case of a first offence, to a minimum fine of $500 and, for a repeat offence, to detention for six months, in addition to a fine of $2000. A person who trades in alcohol can be fined $2000 and imprisoned for six months for a first offence.

In the event of a repeat infraction, the by-law prescribes, in addition to any other penalty, banishment from the community, even permanently. [ 13 ] Following adoption of the by-law and its application, several charges were laid and a substantial number of accused said they intended to contest the legality of some of the by-law’s provisions. [ 14 ] In order to avoid multiple judgments and the risk of contradictory decisions, it was decided, with the attorneys of several of the accused and the prosecutor, to select three cases in order to examine the recriminations formulated. [ 15 ] The charges brought against each of them are as follows: Paul Napash 1.

On or about 11 April 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near km 16 of the Chisasibi Highway, did possess or consume alcoholic beverages in a public place, contrary to

section 5 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. 2. On or about 11 April 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near km 16 of the Chisasibi Highway, was in a state of intoxication, contrary to

section 6 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. 3. On or about 11 April 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near km 16 of the Chisasibi Highway, did possess alcoholic beverages with the intent to sell, contrary to

section 7 of by-law No. 2008-007, and did thereby commit an offence pursuant to

section 12 of the said By-law. Michael Petawabano 1. On or about 16 may 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near 11 Cluster C-4, did administer alcoholic beverages to a minor, to wit, Lynette Bearskin, contrary to

section 7 of By-law No. 88-006, and did thereby commit an offence pursuant to

section 1 of the said By-law. 2. On or about 16 may 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near 11 Cluster C-4, did administer alcoholic beverages to a minor, to wit, Lyndon Wadden, contrary to

section 7 of By-law No. 88-006, and did thereby commit an offence pursuant to

section 1 of the said By-law. 3. On or about 16 may 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near 11 Cluster C-4, did administer alcoholic beverages to a minor, to wit, Priscilla Coonishish, contrary to

section 7 of By-law No. 88-006, and did thereby commit an offence pursuant to

section 1 of the said By-law. 4. On or about 16 may 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near 11 Cluster C-4, did administer alcoholic beverages to a minor, to wit, Carlene Louttit, contrary to

section 7 of By-law No. 88-006, and did thereby commit an offence pursuant to

section 1 of the said By-law. 5. On or about 16 may 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, at or near 11 Cluster C-4, did possess or consume alcoholic beverages contrary to

section 5 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. Arthur Cooper 1. On or about 4 October 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, in or near Cluster F-6, did possess or consume alcoholic beverages in a public place, contrary to

section 5 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. 2. On or about 4 October 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, in or near Cluster F-6, was in a state of intoxication, contrary to

section 6 of By-law No. 2008-007, and did thereby commit an offence pursuant to

section 11 of the said By-law. 3. On or about 4 October 2009, within the Category 1A lands of the Cree Nation of Chisasibi, to wit, in or near Cluster F-5, did possess alcoholic beverages with the intent to sell, transfer or exchange, contrary to

section 7 of by-law No. 2008-007, and did thereby commit an offence pursuant to

section 12 of the said By-law. [ 16 ] For the purposes of this exercise, the facts alleged in support of these charges are not contested, the arguments raised being strictly legal in nature. [ 17 ] So the accused all filed one and the same document, which was intended to be a motion, in order to have certain provisions of the said by-law declared inapplicable in their regard and raise their unconstitutionality.

[ 18 ] The hybrid proceeding was served, as required by articles 95 and 95.1 of the Code of Civil Procedure , to the Attorney General of Canada, the Attorney General of Québec and the Chisasibi Band. Only the Chisasibi Band took

part in the debate and expressed its point of view. [ 19 ] The reasons invoked by the petitioners are based almost exclusively on the provisions of the Charter . They therefore attack, first, the enabling legislation, namely, the Cree-Naskapi (of Quebec) Act , as they believe that the powers granted by sections 8 and 45 of the Act are too broad and are generally in opposition to the rights granted by the Charter. [ 20 ] They also feel that By-law 2008-007 infringes the protections provided for in, among other things,

section 7 of the Charter , in that its scope is too broad and it violates the right to life, liberty and security. Furthermore, they alleged that: • sections 5, 6 and 7 of the by-law violate the liberties protected by the Constitution Act, 1982 , because of their excessive scope; • the burden of proof is reversed under

section 8, contrary to the presumption of innocence; • the seizure and confiscation power provided for in

section 9 is disproportionate and abusive; • the penalties provided for in sections 11 to 16 are excessive and even cruel, once again violating what the Charter enacts; • the by-law is ultra vires in terms of the powers granted a band by the Cree-Naskapi (of Quebec) Act . [ 21 ] Therefore, they asked the Court to intervene so that certain provisions of both the Act and the by-law are declared unconstitutional and inoperative. [ 22 ] In its written reply, the prosecution responded to those arguments and raised, among other things, that the right of self- government it enjoys is not subject to the Charter , with the result that the by-law enacted avoids the application of the Charter. [ 23 ] As pointed out earlier, if that claim were accepted, it would lay waste to virtually all of the petitioners’ constitutional attack.

For that reason, it is appropriate to dispose of it first, in order to clearly determine the focus of the debate. [ 24 ] To support its affirmation, the prosecutor proposed an argument revolving around three main points. [ 25 ] First, it alleged that the Charter does not apply to the by-law enacted by the Band since its adoption was an exercise that stemmed from the inherent right of self-government or the residual sovereignty to regulate social behaviour, and in that regard, those rights have never been renounced or otherwise extinguished. [ 26 ] Second, the respondent contended that

section 32 of the Constitution Act, 1982 , which concerns the scope of the Charter , does not explicitly mention that it refers to something other than the federal and provincial legislatures, and that, therefore, Aboriginal governments, and more specifically bands which are part of the Cree Nation, are excluded. [ 27 ] Lastly, through the interplay of sections 25 and 35 of the Charter , the individual guarantees that the Charter sets forth cannot be invoked to defeat a by-law made by an Aboriginal authority. [ 28 ] The petitioners obviously did not subscribe to those arguments, as they believed that the Charter has a territorial scope and applies without distinction to all people on Canadian territory, regardless of their origin or affiliation.

In their opinion, the right of the Aboriginal peoples to self-government, which is also recognized, does not prevent the Charter from applying to them. [ 29 ] As for the second argument, concerning the scope of

section 32 of the Charter , they replied that, given an authority that has all the characteristics of a government authority, it would be difficult to imagine that the supreme law of the country does not apply to it. [ 30 ] Although the courts and some authors have examined the issue of whether the by-laws made by an Aboriginal entity are subject to the application of the Canadian Charter of Rights and Freedoms —the issue raised here—a clear, uniform response has not been provided. [ 31 ] It is therefore, above all, appropriate to clearly define the debate and state certain starting premises. [ 32 ] First, the fact that the Charter is enshrined in a constitutional law and therefore presides at the top of the legislative hierarchy cannot be disregarded. [ 33 ] Second, on its face at least, the Charter has a territorial scope that knows no restriction, with the result that it applies without distinction to the whole of Canadian territory. [ 34 ] In the same way, no one is excluded from its application because of race, status, origin or affiliation with a particular group.

Much to the contrary, the Charter is intended to be general and inclusive, rather than the opposite. [ 35 ] Furthermore, the Charter does not govern individual relations, but is aimed at overseeing the action of the State in regard to its own people. [6] [ 36 ] As for the prosecution in this case, the Chisasibi Band, the following elements merit emphasis. [ 37 ] The Cree Nation is composed of, among others, individuals of Aboriginal origin who occupy certain lands located in northern Québec and, more specifically as regards the community now known as Chisasibi, along James Bay.

[ 38 ] The development of the resources in that area led government authorities to enter into an agreement, the James Bay and Northern Québec Agreement, and to adopt certain laws for its implementation, particularly the James Bay and Northern Québec Native Claims Settlement Act [7] and the Cree-Naskapi (of Quebec) Act. [8] [ 39 ] It is the latter legislation that empowers the Cree bands, as pointed out earlier, to legislate in certain areas by enacting by-laws. [ 40 ] In addition, wished bear in mind that, throughout the process, it is important not to lose sight of the fact that Aboriginal governance has not adopted a single model and that the rules governing each group are complex.

Considering the limited number of guiding decisions on the subject, several aspects of it remain to be defined by the courts. [ 41 ] Consequently, no absolute, unqualified response can be given to the delicate question of the application of the Charter to an Aboriginal act of governance. [ 42 ] In the case at bar, the act was that of a band council whose constitution, legitimacy and operation are provided for, or at least recognized by, an agreement [9] and a resulting legislative instrument. [10] [ 43 ] In the exercise aimed at responding to the thorny question as to whether such a by-law is subject to the prescriptions of the Charter , the adoption of a three-stage process appears appropriate. [ 44 ] Thus, above all, the precise scope of the Charter must be determined and it therefore must be decided whether the wording of

section 32 makes it possible to include an Aboriginal government among the authorities referred to. [ 45 ] Should the response to that first question be negative, the debate will be closed in favour of the prosecution and it will be unnecessary to take the analysis further. However, if the response is affirmative, the process will continue, since sections 25 and 35 of the Charter specifically address the protection of the rights of the Aboriginal peoples. [ 46 ] Therefore, the second stage of the exercise consists in deciding whether the particular situation contemplated by this case results in the application of

section 25, which protects “any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada”. [ 47 ] Should the response prove negative, the analysis will end there and the necessary conclusion will be that the Charter applies to the impugned by-law. [ 48 ] However, if the conclusion is that the action of the band council stems from an Aboriginal right, it is appropriate to determine what is then the exact effect of the constitutional protection it enjoys.

Is the effect to rebut absolutely and without qualification the application of any right or guarantee in the Charter or is it to give that immunity a relative effect, with the result that the Charter can nonetheless apply? THE SCOPE OF THE CHARTER [ 49 ] The Canadian Charter of Rights and Freedoms defines its scope in

section 32 , which reads as follows: 32.

(1) This Charter applies: (

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories ; and (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

(2) Notwithstanding subsection (1),

section 15 shall not have effect until three years after this

section comes into force. [ 50 ] The first observation is obviously, as the prosecutor pointed out, that any reference whatsoever to Aboriginal government is absent from the provision. It would, however, be premature to conclude that it does not apply for that sole reason, as the issue is more complex than that. [ 51 ] Dolphin Delivery Ltd [11] is one of the first incursions of the Supreme Court into the issue of the scope of the Charter . Besides declaring, as mentioned earlier, that the Charter does not apply to a dispute of a purely private nature, McIntyre J., joined by all his colleagues on the issue, discussed, among other subjects, the scope to be attributed to

section 32 : It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legislation is the only way in which a legislature may infringe a guaranteed right or freedom. Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority.

Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of a guaranteed right or freedom, the Charter will apply and it will be unconstitutional. . . . [ 52 ] As explained below, the courts have not found that that

section must be interpreted so literally that only the legislatures designated therein are subject to the Charter . A review of certain judgments shows that an examination of the powers and attributes that an authority enjoys can lead to the conclusion that, despite its not being identifiable at first glance as one of the entities described in

section 32 , it is nonetheless subject to that section. [ 53 ] Although there is no doubt that government action at the federal and provincial levels is subject directly to the Charter , wished bear in mind that that action can have multiple ramifications and be exercised by bodies that are not necessarily part of the state

apparatus, at least at first glance. [ 54 ] That situation led the highest court in Canada to determine the criteria for a body to possibly be subject to the Constitution Act of 1982 . [ 55 ] Although expressed in a very different context from that of the case at bar, the comments of La Forest J., speaking for the Court, still indicate that the scope of

section 32 can indeed be broader, subject to circumstances: 44. The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself “government” for the purposes of s. 32 .

This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1) . In such cases, all of the activities of the entity will be subject to the Charter , regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”.

Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor.

If the act is truly “governmental” in nature – for example, the implementation of a specific statutory scheme or a government program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities. [12] [ 56 ] Shortly thereafter, in Godbout v.

Longueuil (City) , [13] La Forest J. also wrote that the Supreme Court focused particularly on the issue of whether some of the functions and attributes of municipalities are subject to the Charter . [ 57 ] His reasoning takes us directly to an examination of the government characteristics of an entity, in order to decide whether, yes or no,

section 32 of the Charter encompasses it. Here is what he said: 51. First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent. To my mind, this itself is a highly significant (although perhaps not a decisive) indicium of “government” in the requisite sense.

Secondly, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as “government”, is indistinguishable from the taxing powers of Parliament or the provinces. Thirdly and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction. Thus, while I expressed no specific opinion in McKinney as to whether municipalities are, in fact, subject to the Charter , I nevertheless had this to say, at p. 270 of that case: . . .

I agree with the Court of Appeal that, if the Charter covers municipalities, it is because municipalities perform a quintessentially governmental function. They enact coercive laws binding on the public generally, for which offenders may be punished . . . . [ 58 ] However, another factor influenced the judge in his decision, i.e. that a municipality is the creation of a province, from which it derives its law-making authority: 51. . . .

Finally, and most significantly, municipalities derive their existence and law-making authority from the provinces; that is, they exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves. Since the Canadian Charter clearly applies to the provincial legislatures and governments, it must, in my view, also apply to entities upon which they confer governmental powers within their authority.

Otherwise, provinces could (in the manner outlined earlier) simply avoid the application of the Charter by devolving powers on municipal bodies. [14] [ 59 ] Inspired by this point of view, author Christian Brunelle suggested that “il est vraisemblable que les tribunaux arriveront à une conclusion similaire au sujet des conseils de bandes indiennes”. [15] [ 60 ] The jurisprudence contains certain illustrations in which the issue of the application of the Charter to an Aboriginal government was broached. [ 61 ] In Conseil de la nation huronne Wendat , [16] the Court of Appeal of Québec had to examine a decision rendered by the Superior Court in which the Honourable Ross Goodwin J.A. refused to intervene in the decision of an arbitrator that the judge was asked, by mean of evocation, to review. [ 62 ] Initially, the arbitration tribunal had the task of ruling on the validity of a dismissal, as a result of a rule adopted by a band council that prohibited one of its employees from holding an elective office. [ 63 ] The arbitrator concluded that the Charter did not apply because the decision to dismiss the employee was not the result of a legislative act. [ 64 ] The majority of the Court decided not to intervene, without actually endorsing that assertion.

In her dissenting opinion, the Honourable Rousseau-Houle J.A. indicated that she would have allowed the appeal and reviewed the decision of the arbitrator. [ 65 ] Here is what she said about the possible application of the Charter : Dans le présent litige, il m'apparaît qu'il n'était pas nécessaire pour l'arbitre de conclure à l'existence d'un acte législatif de la part du Conseil de Bande pour que les dispositions de la Charte canadienne garantissant les droits démocratiques et les libertés d'expression et d'association trouvent application.

À mon avis, le Conseil de Bande de la Nation huronne Wendat est assujetti à l'obligation de respecter la Charte canadienne même dans ses activités purement exécutives ou administratives. Ce conseil est constitué au moyen d'élections tenues selon la

Loi sur les Indiens (

article 74 et s.) et il a été reconnu par le gouverneur en conseil comme ayant atteint un haut degré d'avancement lui permettant d'établir des statuts administratifs pour les fins énumérées aux articles 81 et 83 de la

Loi sur les Indiens .

[66] It is not the first time that the same debate brought together the protection of the individual freedoms guaranteed by the Charterand a by-law adopted by an Aboriginal band council governing the consumption of alcohol on its territory. [67] In Campbell,[17] the Court of Appeal of Manitoba had to decide whether such by-laws violated the constitutional guaranteesprovided for in the Charter. [68] Perhaps because that issue of the applicability of the Charter to the regulatory acts of an Aboriginal government was not raisedby any of the parties, the court did not discuss that aspect directly.

However, it unreservedly took for granted that the Charter applied tosuch a by-law, but in that case at bar, the by-law did not violate the Charter, for reasons that are not relevant to report here. [69] Thus, for that court of appeal, it was axiomatic that a Charter-based contestation could be brought against a by-law adopted byan Aboriginal community pursuant to section 85(1) of the Indian Act.[18] [70] More recently, in Horse Lake First Nation v.

Horseman,[19] the Court of Queen’s Bench of Alberta examined that issuespecifically and reached the conclusion that a band council was subject to the application of the Charter. [71] The Court first noted that an entity that exercises authority granted by a law, for example, a municipality, is subject to theCanadian Charter of Rights and Freedoms. [72] Regarding more specifically Aboriginal communities and the bands that govern them, their authority is derived from theprovisions of the Indian Act that define them and give them the power to govern and regulate a number of aspects of the band’soperation.

The Court expressed its reasoning as follows in deciding as it did: [17] Indian Band Councils fall within the definition of a federal board, commission or tribunal in the Federal Court Act, R.S.C. 1985,c. F-7. Section 2(1) of the Federal Court Act provides that a “federal board, commission or other tribunal” means any body or any personor persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or underan order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of aprovince or any such person or persons appointed under or in accordance with a law of a province or under

section 96 of the ConstitutionAct, 1867”. [18] The Alberta Court of Appeal in R. v. Paul Band, 1983 ABCA 308 , [1984] 1 C.N.L.R. 87 held that “[b]and councils arecreated under the Indian Act and derive their authority to operate qua band councils exclusively from that Act. In the exercise of theirpowers they are concerned with the administration of band affairs on their respective reserves whether under direct authority ofParliament or as administrative arms of the Minister. They have no other source of power.

Band councils are thus within the exclusivelegislative jurisdiction and control of the Parliament of Canada over ‘Indians, and Lands reserved for Indians’ . . . and such councils arethus immune to provincial legislation”: p. 7 of 8. [19] Consequently, the Charter should apply to the by-laws and actions of Band Councils; and members of Bands should be able toassert rights, such as the right to freedom of expression, against Band Councils.

In conclusion: [29] The Charter should apply to any decision or by-law or action the Band Council or the Band makes under the authority of theIndian Act because the Band is using its statutory authority to regulate the life of its members. Therefore, the women whom the Bandseeks to restrain from protesting should be able to raise freedom of expression against the Band Council. [30] There are circumstances where the decisions of the Band should not be subject to the Charter.

For example, if the Band or BandCouncil is contracting with a private party for goods or services, the relationship is one that would likely be governed by private contractlaw. [73] Author Henri Brun did not appear to challenge that view when he stated: “La Charte s’applique également aux conseils debandes indiennes qui exercent un pouvoir de contrainte délégué par le Parlement . . .”[20]. [74] In addition, the Federal Court embraced that viewpoint in Clifton v. Benton,[21] in which the members of an Aboriginalcommunity contested the fact that they were refused the right to vote.

The Court deemed that the decisions made by the band council,pursuant to the power devolving to it under the Indian Act, were subject to the Charter. [75] As regards doctrine, a few authors have dwelt on the issue of whether the Charter should be applicable to Aboriginalgovernments and, if so, to what extent and in what way. [76] Professor Ghyslain Otis discussed the subject in the framework of the Aboriginality and Governance project.[22] [77] After defining the purpose of his comments, the author questioned the compatibility of Aboriginal characteristics with theconcept of individual freedom advocated by the Charter, because historically, it is generally admitted that a certain form ofpreponderance is given by the Canadian First Nations to collective interests and well-being. [78] According to Professor Otis, this vision should be modernized and it would be erroneous to consider that the Charter, as such,constitutes a threat to the particularism of the First Nations. [79] Nor does he subscribe to the idea that the conclusion should be that Aboriginal government must be excluded simply becausesection 32 is silent in that regard.

Conversely, a broad

interpretation is required, particularly because that power is exercised within onestate and has the characteristics of that state. Hence, according to him:

When properly placed in its context,

section 32 of the Charter looks much more like the expression of a general principle of good governance in Canada than like a simple list that textually limits the sphere of enforceability of constitutional rights and freedoms. Consequently, the crucial question for the purposes of

section 32 should be whether the actions of an Aboriginal body acting pursuant to an Aboriginal or Treaty right amounts to the imposition on individuals of public power for the general good. If the answer is yes, then the Charter should be applicable depending on how

section 25 is interpreted. [ 80 ] Author Jack Woodward, in the work entitled Native Law , [23] agreed. Reiterating, among other comments, those of the Court of Queen’s Bench in Horseman , [24] he arrived at the same conclusion, subject, however, to certain reservations, that the Charter indeed applies to decisions by the governments of a First Nation. 1.

Application of the Charter to Aboriginal Governments 6 § 240 The Charter does not expressly state that it applies to aboriginal governments, By virtue of s. 32 of the Charter , the Charter applies to all matters within the authority of Parliament, the provincial legislatures and territorial legislatures, municipal governments, as well as a number of other entities exercising governmental functions. 6 § 250 The courts have consistently ruled – or in some cases, assumed – that the Charter applies to matters within the authority of Indian band governments, including election codes and bylaws, membership codes, residency bylaws, and the actions of band constables acting on behalf of the band.

The Alberta Court of Queen's Bench explained why this is the case by referencing a description of band governments from an earlier, non- Charter decision: [A]n Indian band Council is an elected public authority, dependent on Parliament for its existence, powers and responsibilities, whose essential function it is to exercise municipal and government power – delegated to it by Parliament – in relation to the Indian Reserve whose inhabitants have elected it; as such it is to act from time to time as the agent of the Minister and the representative of the band with respect to the administration and delivery of certain Federal programs for the benefit of Indians on Indian Reserves, and to perform an advisory, and in some cases a decisive role in relation to the exercise by the Minister of certain of his statutory authority relative to the Reserve.

On this basis, the Court concluded: “The Charter should apply to any decision or by-law or action the Band Council or the Band makes under the authority of the Indian Act because the Band is using its statutory authority to regulate the life of its members”. 6 § 260 There may be limits to the application of the Charter to aboriginal governments. One court has suggested in passing that the Charter would not apply where a First Nation exercises regular commercial functions, but the matter was not at issue in the case, and the court did not consider the fairly extensive body of case law governing the

interpretation of s. 32 of the Charter . 6 § 270 There may be situations where a First Nation government makes a decision or adopts a law by exercising what it asserts to be an inherent law-making power, or a treaty-based law-making power, rather than any power derived from the Indian Act or any other statute.

If the First Nation is acting pursuant only to an inherent self-government power ( i.e ., an aboriginal right) or a treaty right, and not any delegated statutory authority, the exercise of this power should not be subject to the Charter . 6 § 280 Moreover, s. 25 or the Charter stipulates that, subject to the principle of gender equality, Charter rights may not interfere with aboriginal and treaty rights.

Therefore, if a First Nation exercises a power pursuant to both its delegated statutory authority and an inherent self-government right, the Charter presumably applies, but the s. 35 right must ultimately be protected and prevail over the asserted Charter right in the event of a conflict.

However, to date, neither of these two scenarios has been the subject of any court decision. 6 § 290 Modern aboriginal self-government agreements provide for the application of the Charter to the governments of the signatory First Nation [ 81 ] Author Margaret Buist [25] is generally of the same opinion and goes even further by saying that, although the powers that an Aboriginal government enjoys are not derived from the Indian Act , but rather from an agreement, a treaty or the right to self-government, they should, in any case, be bound by the provisions of the Charter , so that the rights and guarantees it contains can be applied without distinction to all Canadian citizens, regardless of whether they are of Aboriginal origin or not: HAB-12 Application of Charter to aboriginal bands and band councils.

Pursuant to s. 32(1) of the Canadian Charter of Rights and Freedoms , the Charter applies to the Parliament and the Government of Canada and to provincial legislatures and governments in respect of all matters within their authority. Where Indian bands and Indian band councils derive their authority from the Indian Act , the Charter applies to their conduct and laws, which are within the authority of Parliament under s. 32(1) . The Charter also applies to bands and band councils that follow their own electoral process on the basis of band custom, rather than the Indian Act regime.

Application of Charter to other forms of government. For other forms of aboriginal government, including those under comprehensive land claims and self-government agreements, the Charter applies by virtue of the agreements themselves. Under federal government policy on the inherent right to aboriginal self-government, the Charter should bind all governments in Canada, such that aboriginal peoples and non-aboriginal Canadians alike enjoy equally the rights and freedoms guaranteed by the Charter .

Modern treaties specifically provide that the Charter applies to aboriginal governments and institutions in relation to all matters within their respective jurisdictions and authorities [ 82 ] Author Kent McNeil supports the opposite position, i.e. that the Charter should not apply to a by-law adopted by a band council. [ 83 ] Without overly simplifying his viewpoint, which is based on elaborate reasoning, he is, in

summary, of the opinion that, first, the fact that

section 32 of the Charter specifically describes the levels of government referred to is an indication that the

section does not target the Aboriginal entities.

[ 84 ] Furthermore, he proceeds from the premise that the band councils, save exceptions, enjoy an inherent power of self-government, and that the introduction of the Indian Act that dictated in which area they could legislate did not change that fact. [ 85 ] Focusing specifically on the case of the Crees concerned by the James Bay Agreement, he argues that the situation is no different, since the right to self-government found in the Cree-Naskapi of (Quebec) Act is nothing but the expression of an inherent right that existed previously.

Here is how he explains that: While the statutory jurisdiction that the new band councils can exercise is more extensive than that of their Indian Act predecessors, they are no more delegates of Parliament than the band councils they replaced. Neither the Agreement nor the Cree-Naskapi Act took away the inherent right to govern themselves that the James Bay Cree retained under the Indian Act. The source of the jurisdiction of the James Bay Crees over their lands and peoples originates in that inherent right, rather than in the legislation which regulates its exercise.

So when section 45(1) of Cree-Naskapi Act provides that a band “may make by-laws of a local nature for the good government of its Category 1A … land and of the inhabitants of such land, and for the general welfare of the members of the band,” that is a declaratory affirmation of pre-existing authority rather than an original source of jurisdiction.

For this reason, the James Bay Cree band councils, like the Indian Act band councils before them, are not brought within the general scope of the Charter by section 32(1) . [26] [ 86 ] In any event, the author is of the opinion that, as the Supreme Court said, any debate involving the Charter and Aboriginal rights must be resolved in favour of the Aboriginal rights to the extent possible. [ 87 ] Obviously, that poses the question of whether the non-application of the Charter can be considered favourable to Aboriginal rights.

In the opinion of Professor McNeil, it is. [27] [ 88 ] However, as the examination of the opinions expressed by the courts or some authors show, that viewpoint does not seem to attract majority support.

The reason is perhaps that two other provisions of the Charter , sections 25 and 35 , are aimed specifically at promoting and protecting existing Aboriginal rights. [ 89 ] The reasoning in the doctrine and judgment mentioned above cannot be imported into the case at bar without a degree of caution. [ 90 ] Before subscribing to what appears to be the majority trend, it is essential to identify and take into consideration the features proper to the situation of the Crees in the province of Québec. [ 91 ] As related earlier, an agreement known as the James Bay and Northern Québec Agreement was entered into on November 11, 1975 between the Grand Council of the Crees (of Québec), the Northern Québec Inuit Association, the Government of Québec, the Société d’énergie de la Baie James, the Société de développement de la Baie-James, the Commission hydroélectrique de Québec and the Government of Canada. [ 92 ] Paragraph 2.1 of the Agreement provides that, under certain conditions, the rights and claims that the Cree may have to land along James Bay amoung others are surrendered.

Here is what the paragraph in question states: In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Québec, the James Bay Crees and the Inuit of Québec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the territory and in Québec, and Québec and Canada accept such surrender. [ 93 ] In consideration of that surrender, the governments of Québec and Canada recognize that the peoples involved have certain rights. [ 94 ] In addition, the two levels of government undertook to adopt all the legislative measures required to approve the Agreement and put it into force.

They also had to provide that, in the event of inconsistency or conflict, the Agreement and the laws accordingly adopted would prevail. [ 95 ] Furthermore, it was provided in paragraph 2.11 that the Agreement would not deprive Cree individuals of any rights whatsoever and that they would continue to enjoy those rights like any other Canadian citizen: Nothing contained in the Agreement shall prejudice the rights of the Native people as Canadian citizens of Québec, and they shall continue to be entitled to all of the rights and benefits of all other citizens as well as those resulting from the Indian Act (as applicable) and from any other legislation applicable to them from time to time. [ 96 ] The powers that must devolve to the local governments of each territory identified in the Agreement are listed in

Section 9. [ 97 ] The adoption of legislation allowing the constitution of each band and the organization of its government is provided for. Moreover, it is stated that the legislation must include a description of the powers that the band enjoys. The following is stated in particular: Such legislation shall contain the following provisions inter alia:

c) powers of the band council, which shall include these powers under the existing sections 28 (2) , 81 and 83 of the Indian Act and all or most of the powers exercised by the Governor-in-Council under s. 73 of the Indian Act as well as certain non-governmental powers;

m) certain defined powers relating to land use and environmental and social protection;

p) and such other powers as may be incidental and/or ancillary to the exercise of local government or the implementation of the Agreement; [ 98 ] Thus, the Cree-Naskapi (of Québec) Act was assented to on June 14, 1984, in order to implement the commitments made by the

Government of Canada when the Agreement was entered into. [ 99 ] Hence, the peoples targeted benefited from a special regime and were excluded from the application of the Indian Act , except as regards one specific aspect, namely, the determination of their individual status: 5.

Except for the purpose of determining which of the Cree beneficiaries and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act , the Indian Act does not apply to Cree bands or the Naskapi band, nor does it apply on or in respect of Category IA or IA- N land. [28] [ 100 ] So it is the Cree-Naskapi (of Québec) Act that describes the regulatory power devolving to the band, particularly in matters of the sale, possession and consumption of alcoholic beverages, as explained earlier. [29] [ 101 ] A reading of the provisions of that legislation and of the Indian Act regarding the power to regulate show that, although the two legislative texts are not exactly alike, the subjects they target are the same in more ways than one. [ 102 ] To illustrate,

section 85.1 of the Indian Act , which, in a more elaborate manner than what is provided for in the equivalent provision of the Cree-Naskapi (of Québec) Act , targets the power of a band council to regulate in matters dealing with alcohol: 85.1

(1) Subject to subsection (2), the council of a band may make by-laws (

a) prohibiting the sale, barter, supply or manufacture of intoxicants on the reserve of the band; (

b) prohibiting any person from being intoxicated on the reserve; (

c) prohibiting any person from having intoxicants in his possession on the reserve; and (

d) providing for exceptions to any of the prohibitions established pursuant to paragraph (

b) or ( c ).

(2) A by-law may not be made under this

section unless it is first assented to by a majority of the electors of the band who voted at a special meeting of the band called by the council of the band for the purpose of considering the by-law. . . . [ 103 ] It therefore appears that, despite the special treatment reserved for the Crees as a result of the signing of the James Bay Agreement, their situation is akin, as regards the aspects we are focusing on here, to those of the peoples to whom the Indian Act applies.

Consequently, the Court believes links must be made between their situations, with the result that it would be rather difficult to stray from the opinions expressed by the majority jurisprudence, which prefers the approach that subjects Aboriginal governments to the Charter . [ 104 ] The bands and the councils that govern them remain legislative creations, stemming from the commitments made by Parliament in the James Bay and Northern Québec Agreement.

Their main role is to organize and manage a territory with a number of government prerogatives governing the lives and activities of its members. [ 105 ] Hence, in these circumstances, it would be difficult to conclude that the Chisasibi Band and the Council governing it are outside the scope described by

section 32 of the Canadian Charter of Rights and Freedoms . [ 106 ] Therefore, the Court is of the opinion that the answer to the first question asked is that the wording and required

interpretation of

section 32 of the Charter mean that it applies to the Aboriginal government involved here.

THE EFFECT OF SECTIONS 25 AND 35 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS [ 107 ] As a result of the conclusion that the Court reached in regard to the first component of the analysis, we must go on to the second one, which consists in determining whether, through the interplay of sections 25 and 35, it can be contended that, although they are applicable to a band and its decisions, the provisions of the Charter in this case must be set aside as regards the by-law concerning alcohol. [ 108 ] The approach to take first requires that it be decided whether there is an Aboriginal right stemming from a treaty or another source that may be contemplated by

section 25 of the Charter , which reads as follows: 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: (

a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763 ; and (

b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. [ 109 ] Before focusing on the question of whether the case being studied here can be considered to involve an Aboriginal right, and therefore be targeted by that provision, it is appropriate to consider the nature of the provision and its objective. [ 110 ] The decision of the Supreme Court in R. v. Kapp [30] is of particular interest when the time comes to examine

section 25 of the Charter . [ 111 ] In that case, the highest court in the land had to judge the legality of a decision by the federal government to set up a program granting certain commercial fishing privileges to three Aboriginal bands, in order to promote their participation in that kind of activity.

[ 112 ] Invoking the right to equality provided for in

section 15, non-Aboriginal commercial fishermen opposed the decision. [ 113 ] The majority of the Court decided the issue by applying the exception provided for in the second paragraph of

section 15, regarding the affirmative action program. The majority opinion summarily disposed the issue of the application of

section 25 as follows: [62] Having concluded that a breach of s. 15 is not established, it is unnecessary to consider whether s. 25 of the Charter would bar the appellants’ claim. However, we wish to signal our concerns with aspects of the reasoning of Bastarache J. and of Kirkpatrick J.A., both of whom would have dismissed the appeal solely on the basis of s. 25. [63] An initial concern is whether the communal fishing licence at issue in this case lies within s. 25’s compass.

In our view, the wording of s. 25 and the examples given therein — aboriginal rights, treaty rights, and “other rights or freedoms”, such as rights derived from the Royal Proclamation or from land claims agreements — suggest that not every aboriginal interest or program falls within the provision’s scope. Rather, only rights of a constitutional character are likely to benefit from s. 25.

If so, we would question, without deciding, whether the fishing licence is a s. 25 right or freedom. [64] A second concern is whether, even if the fishing licence does fall under s. 25, the result would constitute an absolute bar to the appellants’ s. 15 claim, as distinguished from an interpretive provision informing the construction of potentially conflicting Charter rights. [65] These issues raise complex questions of the utmost importance to the peaceful reconciliation of aboriginal entitlements with the interests of all Canadians.

In our view, prudence suggests that these issues are best left for resolution on a case-by-case basis as they arise before the Court. [ 114 ] Bastarache J. adopted a different approach, as he was of the opinion that it was not appropriate to examine the question with recourse to

section 15 of the Charter if

section 25 must apply. [ 115 ] In regard to

section 25, he rejected the contention that it was a matter of a simple standard of

interpretation and he adhered more to the idea, as a number of authors in fact have, that that provision provides real protection from a constitutional attack. Commenting on the words of the Minister of Justice at the time, he noted the following: [93] . . . It was made abundantly clear that s. 25 creates no new rights. It was meant as a shield against the intrusion of the Charter upon native rights or freedoms. . . . [ 116 ] He admitted, however, that that shield has limits, particularly through

section 28 of the Charter , which, in any case, proscribes discrimination against the rule of the equality of the sexes. [ 117 ] Furthermore, since its objective is to protect Aboriginal rights from impairment of the rights and freedoms guaranteed by the Charter , it is only in the presence of a law that directly impairs Aboriginal rights that that protection will arise. He expressed that principle in the following manner: [97] This means in essence that only laws that actually impair native rights will be considered, not those that simply have incidental effects on natives. [ 118 ] As for the particular issue of determining the effect of

section 25 in regard to Aboriginal peoples as individuals, there is no reason to exclude them through the interplay of that protection provision and the guarantees offered by the Charter . [ 119 ] Admitting, moreover, that the subject involves uncertainties, he was nonetheless of the following opinion: [99] There is no reason to believe that s. 25 has taken Aboriginals out of the Charter protection scheme. One aboriginal group can ask to be given the same benefit as another aboriginal group under s. 15(1). Sections 2 and 3 of the Charter apply to Aboriginals.

Macklem, at pp. 225-27, suggests that the courts should distinguish between external and internal restrictions on aboriginal laws that clash with the Charter and that in the case of internal restrictions, aboriginal communities should be required to satisfy the Oakes test to resist a challenge. It could also be argued that it would be contrary to the purpose of s. 25 to prevent an Aboriginal from invoking those sections to attack

an Act passed by a band council. It is not at all obvious in my view that it is necessary to constrain the individual rights of Aboriginals in order to recognize collective rights under s. 25; as A. Shachar notes, individuals can have multiple identities (“The Paradox of Multicultural Vulnerability: Individual Rights, Identity Groups, and the State”, in C. Joppke and S. Lukes, eds., Multicultural Questions (1999), 87; see also W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995), at p. 35). Aboriginals are Canadian.

The framework of reconciliation is consistent with the need for flexibility in the application of s. 25. This is in line with the approach taken by Binnie J. in Mitchell v. M.N.R. , [2001] 1 S.C.R. 911 , 2001 SCC 33 , at para. 164 . [Emphasis added.] [ 120 ] As for the scope of that protection, Bastarache J. saw in the words used the intention to target subjects closely tied to the characteristics proper to the status of Aboriginal.

In other words, to be protected from a constitutional attack based on the Charter , a law or regulation must target protection of a right closely tied to an Aboriginal identity: [103] I believe that the reference to “aboriginal and treaty rights” suggests that the focus of the pro vision is the uniqueness of those persons or communities mentioned in the Constitution; the rights protected are those that are unique to them because of their special status.

As argued by Macklem, s. 25 “protects federal, provincial and Aboriginal initiatives that seek to further interests associated with indigenous difference from Charter scrutiny”: see p. 225. Accordingly, legislation that distinguishes between aboriginal and non- aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny. [ 121 ] The result is the simple fact that “ a statute relates to aboriginal people would not, without more, suffice to bring it within the

scope of s. 25”. [31] [ 122 ] So what that

section aims to protect are the rights and freedoms of an Aboriginal nature stemming from treaties or other sources. Its objective is to protect “ interests associated with aboriginal culture, territory, self-government, . . . and settlement agreements that are a replacement for treaty and aboriginal rights” from any attack based on the Charter . [32] [ 123 ] He added that, as is generally the case, the purpose of these provisions is not to govern private law.

Therefore, like any Canadian citizen, an Aboriginal person could not invoke those provisions in a debate where the issues were strictly private. [ 124 ] As for the analytical approach to be taken, the judge was of the opinion that an argument based on

section 25 is preliminary in nature and must be settled before it is decided whether there is a violation of the Charter . [ 125 ] That does not mean that the subject of the constitutional contestation need not be clearly identified, since it is essential to determine whether a true conflict between the Aboriginal right and the right alleged to be violated actually exists. [ 126 ] Bastarache J. therefore proposed the following analytical approach: [111] There are three steps in the application of s. 25.

The first step requires an evaluation of the claim in order to establish the nature of the substantive Charter right and whether the claim is made out, prima facie . The second step requires an evaluation of the native right to establish whether it falls under s. 25. The third step requires a determination of the existence of a true conflict between the Charter right and the native right. [ 127 ] After applying that process, the judge concluded in the same way as his colleagues, i.e. that the appeal had to be dismissed. [ 128 ] However, he reached that result by concluding that

section 25 must apply, with the consequence that the appellants’ claims that

section 15 of the Charter was violated must be dismissed. [ 129 ] Both the authors and the courts have tried in recent years to define the notion of Aboriginal right to which both

section 25 and

section 35 of Canada’s Constitution Act, 1982 refer. [ 130 ] First Sparrow , [33] then Van der Peet [34] and Smokehouse Ltd. , [35] all rulings by the Supreme Court, broached this subject. Here is what must be gleaned from them. [ 131 ] In Sparrow , it had to be decided whether a restriction on fishing methods was compatible with section 35(1) of Canada’s Constitution Act, 1982 .

Although both the context and the subject of the debate differ from the case at bar, the decision sheds light on what an Aboriginal right is and from what angle it must be examined. [ 132 ] The Court stressed that the definition given that term must not be frozen in time, but can evolve. Writing the judgment for the Court, Dickson and La Forest JJ. affirmed the following in that regard: Far from being defined according to the regulatory scheme in place in 1982, the phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time.

To use Professor Slattery’s expression, in “Understanding Aboriginal Rights,’” supra , at p. 782, the word “existing” suggests that those rights are “affirmed in a contemporary form rather than in their primeval simplicity and vigour”. Clearly, then, an approach to the constitutional guarantee embodied in s. 35(1) which would incorporate “frozen rights” must be rejected. [36] [ 133 ] The Court then developed the test that makes it possible to know whether legislation is in opposition to section 35(1) of the Act.

It is not useful here to examine its comments. [ 134 ] A few other significant judgments [37] followed on the same subject, but the most important was, without a doubt, Van der Peet . Lamer C.J., speaking for the majority, stated the question targeted by the appeal as follows: “How are the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?”. [ 135 ] Taking up where Sparrow left off, the Court developed a test to determine whether an Aboriginal right exists.

This is how it described the process: [46] In light of the suggestion of Sparrow , supra , and the purposes underlying s. 35(1) , the following test should be used to identify whether an applicant has established an aboriginal right protected by s. 35(1) : in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right. [ 136 ] That said, the Court applied itself to clarifying that notion on the basis of various criteria. [ 137 ] First, it stated that: “ Courts must take into account the perspective of aboriginal peoples themselves ”. [38] But that perspective must be “cognizable to the Canadian legal and constitutional structure”. [39] [ 138 ] Second, Lamer C.J. believed that: “ Courts must identify precisely the nature of the claim being made in determining whether an aboriginal claimant has demonstrated the existence of an aboriginal right ”. [40] [ 139 ] It is therefore important to ensure that the claim of an aboriginal right is properly qualified.

In that approach, the Court underlined again, as it did in Sparrow , that those rights are likely to evolve: Moreover, the court must bear in mind that the activities may be the exercise in a modern form of a practice, tradition or custom that existed prior to contact, and should vary its characterization of the claim accordingly. [41] [Emphasis added.] [ 140 ] The following factor is to be taken into consideration: “ In order to be integral a practice, custom or tradition must be of central

significance to the aboriginal society in question ”. [42] [ 141 ] That means that a person who claims an aboriginal right must not only establish it but must also demonstrate that it is a “central and significant part of the society’s distinctive culture”. [43] [ 142 ] The Chief Justice stated the next criterion as follows: “ The practices, customs and traditions which constitute aboriginal rights are those which have continuity with the traditions, customs and practices that existed prior to contact ”. [44] [ 143 ] Hence, the period that must be taken into consideration is that preceding the arrival of Europeans on the land, since the essential characteristic of Aboriginal societies is that they existed prior to that arrival. [ 144 ] It should be pointed out that it is a not a matter here of establishing that the right existed at the time, but rather that its origin likely dates back to before the first Europeans settled in North America. [ 145 ] In addition, as stated earlier, the right involved can very well have evolved over time, provided, however, that a certain continuity with Aboriginal customs, practices and traditions can be observed.

In other words, provided that a right stems from a characteristic proper to the society that existed before the arrival of the first Europeans, its current expression, even if modernized, can meet that condition. [ 146 ] Subsequently, the Court issued a warning to courts asked to examine that question: “ Courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims ”. [45] [ 147 ] Reduced to its most simple expression, it is, in fact, a question of inviting the courts of justice that must decide that type of dispute to show openness, given the substantial difficulties inherent in an exercise aimed at demonstrating a custom, practice or tradition that dates back several centuries. [ 148 ] The Supreme Court also expressed the opinion that: “ Claims to aboriginal rights must be adjudicated on a specific rather than general basis ”. [46] [ 149 ] So it is in light of the facts peculiar to each case that the dispute must be resolved.

Hence, we must refrain from generalizing and unduly extending to other groups or subjects the conclusion drawn in a specific sitiuation. [ 150 ] According to the Supreme Court: “ For a practice, tradition or custom to constitute an aboriginal right it must be of independent significance to the aboriginal culture in which it exists ”. [47] Therefore, “The practice, custom or tradition cannot exist simply as an incident to another practice, custom or tradition but must rather be itself of integral significance to the aboriginal society”. [48] [ 151 ] Lamer C.J. said the following about the next factor: “ The integral to a distinctive culture test requires that a practice, custom or tradition be distinctive; it does not require that that practice, custom or tradition be distinct ”. [49] In short, the judge emphasized the difference between the terms distinct and distinctive in order to say that a custom, practice or tradition need not be unique to a designated society, but rather that it must constitute one of its characteristics. [ 152 ] He continued by saying that: “ The influence of European culture will only be relevant to the inquiry if it is demonstrated that the practice, custom or tradition is only integral because of that influence ”. [50] [ 153 ] What that criterion means is that an Aboriginal right does not exist if it is merely the emanation of European influence.

However, the fact that it changed when it came in contact with European influence has no impact on the question of determining whether a claim is justified: . . .; European arrival and influence cannot be used to deprive an aboriginal group of an otherwise valid claim to an aboriginal right.

On the other hand, where the practice, custom or tradition arose solely as a response to European influences then that practice, custom or tradition will not meet the standard for recognition of an aboriginal right. [51] [ 154 ] Lastly, he ended his list of factors to consider by indicating that: “ Courts must take into account both the relationship of aboriginal peoples to the land and the distinctive societies and cultures of aboriginal peoples ”. [52] [ 155 ] The Court explained that as follows: “In considering whether a claim to an aboriginal right has been made out, courts must look at both the relationship of an aboriginal claimant to the land and at the practices, customs and traditions arising from the claimant’s distinctive culture and society”. [53] [ 156 ] In the circumstances proper to Van der Peet , the majority of the Supreme Court refused to intervene, as it believed that the activity involved defined as the “exchange of fish for money”, [54] could not be considered an Aboriginal right. [ 157 ] On August 22, 1996, at the same time that it rendered judgment in Van der Peet , the Supreme Court submitted the reasons for Pamajewon . [55] [ 158 ] In a unanimous judgment, although L’Heureux-Dubé J. explained her reasoning separately, the highest court dismissed an appeal in which the appellants asked it to recognize that

section 35 of the Charter , which deals with aboriginal rights, applied to the gambling operations of two Aboriginal communities. [ 159 ] They thereby sought to be absolved of charges brought pursuant to sections 201(1) and 206(1) of the Criminal Code , concerning the keeping of a gaming house or having conducted a scheme to determine the winners of property. Both offences were said to have been committed in the framework of games organized in each community under laws concerning lotteries enacted by the band council in 1985 and 1987. Note that, in both cases, the laws were not by-laws made under

section 81 of the Indian Act . [ 160 ] The constitutional question formulated further to leave to appeal to the Supreme Court was as follows:

Are s. 201, s. 206 or s. 207 of the Criminal Code, separately or in combination, of no force or effect with respect to the appellants, byvirtue of s. 52 of the Constitution Act, 1982 in the circumstances of these proceedings, by reason of the aboriginal or treaty rights withinthe meaning of s. 35 of the Constitution Act, 1982 invoked by the appellants?[56] [161] First, Lamer C.J. approached his analysis by stating that the determination of the Aboriginal rights recognized by

section 35depends on the application of the principles set forth in Van der Peet. Moreover, he added that the claim of the right to self-governmentas an Aboriginal right must follow the same course and meet the standard established by that judgment: . . . Assuming without deciding that s. 35(1) includes self-government claims, the applicable legal standard is nonetheless that laid out inVan der Peet, supra.

Assuming s. 35(1) encompasses claims to aboriginal self-government, such claims must be considered in light of thepurposes underlying that provision and must, therefore, be considered against the test derived from consideration of those purposes. Thisis the test laid out in Van der Peet, supra.

In so far as they can be made under s. 35(1), claims to self-government are no different fromother claims to the enjoyment of aboriginal rights and must, as such, be measured against the same standard.[57] [162] At the first stage of reasoning developed in Van der Peet, the Court set about characterizing the Aboriginal claim. In doing so, itrejected the suggestion of the appellants, who submitted a much broader claim, namely, the general right to manage the use of the landon their reserves. Lamer C.J. rejected that suggestion in the following manner: . . .

To so characterize the appellants’ claim would be to cast the Court’s inquiry at a level of excessive generality.

Aboriginal rights,including any asserted right to self-government, must be looked at in light of the specific circumstances of each case and, in particular, inlight of the specific history and culture of the aboriginal group claiming the right. . . .[58] [163] Rather, the Chief Justice believed that it was more accurate to characterize their claims by means of the question of whethersection 35 recognizes and confirms the right of the communities involved “to participate in, and to regulate, gambling activities on theirrespective reserve lands”.[59] [164] The Court continued its analysis and quickly noted that the elements submitted by the appellants were not likely to support theircontentions, with the result that it concluded as follows: Given this evidentiary record, it is clear that the appellants have failed to demonstrate that the gambling activities in which they wereengaged, and their respective bands’ regulation of those activities, took place pursuant to an aboriginal right recognized and affirmed bys. 35(1) of the Constitution Act, 1982.[60] [165] Authors Henri Brun, Guy Tremblay and Eugénie Brouillet also examined the issue.

Their analysis of the jurisprudence led themto express reservations regarding the extent of the power of Aboriginal communities to manage themselves and govern certain aspects oftheir activities. Reiterating what was said in the jurisprudence cited earlier, they dealt with the subject as follows: Le droit ancestral étant un droit collectif, le peuple qui en est titulaire peut « réglementer » son exercice, s’autogérer. Il n’est toutefois pasacquis (ni exclu) que les autochtones disposent par ailleurs d’un droit de régir la vie en société.

La jurisprudence sur les droits ancestrauxtient à se concentrer sur des activités fort spécifiques. Cette attitude de la Cour suprême empêche de dire qu’une bande autochtonepourrait avoir, parmi ses droits ancestraux, une autonomie gouvernementale de principe. Voir R. c. Pamajewon, (SCC),[1996] 2 R.C.S. 821, et Delgamuukw, supra.

Chaque fois qu’une bande prétendrait vouloir régir un aspect de la vie en société, il faudraitqu’elle prouve qu’elle avait coutume de la faire dès l’époque précoloniale et qu’il s’agit là d’un élément crucial de sa culture distinctive.Ainsi, dans Pamajewon, ci-dessus, il fut jugé que les bandes concernées n’avaient pas le droit ancestral de régir les jeux de hasard dansleurs réserves. Dans cette affaire, la Cour suprême a présumé, sans en décider, que l’article 35 peut comprendre des droits à l’autonomiegouvernementale.

Pour sa part, la Commission royale sur les peuples autochtones a affirmé en 1993 et en 1996 que le droit inhérent àl’autonomie gouvernementale est consacré par la Constitution. De fait, les tribunaux ont parfois admis des coutumes autochtones, parexemple en matière d’adoption et de mariage (Casimel c. Insurance Corp. of British Columbia, (1994) (BC CA), 106D.L.R. (4th) 720 (C.A. C.-B.); Manychief c. Poffenroth, (AB KB), [1995] 3 W.W.R. 210 (B.R. Alta)).

Il reste à voir sides coutumes peuvent, tout en restant des « droits ancestraux « , se transformer en pouvoirs de légiférer et de contraindre relativementaux matières en cause. En assumant la souveraineté sur le territoire canadien, la Couronne britannique acceptait que les lois préexistantescontinuent de prévaloir, jusqu’à ce qu’elle les change. Et un pouvoir ancestral modernisé, permettant d’édicter des lois et des règlements,serait contraire au partage exhaustif des compétences entre le fédéral et les provinces. Voir Delgamuukw c. British Columbia, (BC CA), [1993] 5 W.W.R. 97 (C.A.

C.-B.), 148-153 et 225, un point sur lequel la Cour suprême ne s’est pas prononcée enappel, mais qui fut contredit dans Campbell c. British Columbia (Attorney general), [2000] 8 W.W.R. 600 (C.S. C.-B.), 628.[61][Emphasis added.] [166] So the authors had serious reservations regarding an inherent power of Aboriginal bands to adopt by-laws that organize the socialaspects of their community life.

However, the Court believes that that question does not arise in the case at bar since that power, even ifthe Chisasibi Band did not have it, which is, in fact, debatable, was at least granted by law. [167] But returning to the teachings of the Supreme Court in Van der Peet, and the way it applied them in Pamajewon, it is appropriateto import them into the case at bar in order to decide whether, in this case, an Aboriginal right can be invoked and thereby takeadvantage of the shield provided by

section 25 of the Charter. [168] According to the process proposed by the Supreme Court, the first stage consists in characterizing the right claimed. [169] The Court rejects outright the idea that the right can be the general right to govern and make by-laws applying on the territoryunder the authority of the Chisasibi Band. Such a description is much too broad and likely to encompass myriad aspects of Aboriginalgovernance that do not deserve to be dealt with on an equal footing and in the same way.

[ 170 ] It is, in fact, obvious that some acts of governance are derived from practice, tradition or custom, while others cannot claim such an origin.

Therefore, a response to a question formulated in such general terms can but prove incorrect from one standpoint or another in a particular situation. [ 171 ] In the same way, the Court rejects any theory that the nature of the claim is the right to regulate any subject having to do with the security and well-being of the Aboriginal community. [ 172 ] Here again, that manner of stating the question is too broad and does not meet the test in Van der Peet requiring the courts to determine precisely the nature and scope of the claim involved. [ 173 ] In the case at bar, the Court believes that an adequate characterization would be to qualify the claim as the right to regulate the possession and consumption of alcohol on the territory of the Chisasibi Band. [ 174 ] That is obviously the precise subject contemplated by the by-law adopted by the Band Council, and there is no reason, in the Court’s opinion, to qualify more broadly the claim involved.

That particular area is sufficiently important for the legislator, in both the Indian Act and the Cree-Naskapi (of Québec) Act , to have deemed it useful to enact a specific regulatory power concerning it. [ 175 ] That said, a problem therefore now arises in pursuing the reasoning based on the analytical framework proposed in Van der Peet . [ 176 ] Bear in mind that the present judgment responds to a preliminary question strictly aimed at knowing whether, because of its nature, the by-law adopted by the Chisasibi Band Council is subject to the Canadian Charter of Rights and Freedoms . [ 177 ] Although it was decided in an initial stage that

section 32 , which defines the scope of the Charter , encompassed an Aboriginal government, that does not mean the by-law made by that government would fail to enjoy protection by the interplay of sections 25 and 35 of the Charter . [ 178 ] However, although the Court has an opinion on the issue, it cannot be decided without the parties having an opportunity to defend their points of view and, if necessary, adduce evidence to establish or refute whether an Aboriginal right is involved. [ 179 ] The opportunity must therefore be offered both the prosecutor and the accused to demonstrate that the claim as formulated, namely, the right to regulate the consumption and possession of alcohol, stems or does not stem from a custom, practice or tradition that can claim the status of an Aboriginal right for the Cree Nation of Chisasibi. [ 180 ] Considering the conclusion that the Court reached regarding the second component of the analysis, it is premature to broach the third component and discuss the required

interpretation to be given in the circumstances of the protection offered by

section 25 of the Canadian Charter of Rights and Freedoms . FOR THESE REASONS, THE COURT: [ 181 ] DECLARES that, in accordance with its

section 32 , the Canadian Charter of Rights and Freedoms applies to the Chisasibi Band; [ 182 ] DECLARES that the right claimed by the Chisasibi Band is the right to govern and regulate the possession and consumption of alcohol on its land; [ 183 ] RESERVES for the parties the right to submit any relevant evidence aimed at establishing or denying the existence of that Aboriginal right. __________________________________ JEAN-PIERRE GERVAIS, J.C.Q. Deborah Hawken Counsel for the prosecution Yann Massé Claude Beaudet Counsel for the defence Dates of hearing: January 29 and 30, April 30 and May 1, 2013