Limiting an Aboriginal or Treaty Right

The courts have developed tests to decide if a law that limits a right and should be declared invalid. 

First the court needs to decide if the law limits a right protected under the Constitution. Then they consider three things to determine if the right has been violated (infringed)...

• Is the limit unreasonable?
• Do the right holders face undue hardship because of the law?
• Does it stop the right holders from exercising their right in the way they want to?

Unreasonable

Whether a limit is unreasonable has been considered by courts looking at Treaty hunting and fishing rights. The Supreme Court has found that safety regulations do not violate the right to hunt. This does not mean that all safety laws are reasonable. In another case the Supreme Court found that not allowing a method of hunting in any circumstances, violated hunting rights, even if it could be dangerous in some circumstances. 

Requiring a licence for guns and regulating the use of guns have been found to be reasonable. Laws needed to conserve the resource have also been found to be reasonable. This includes having an open season as the only time hunting or fishing is allowed.

Undue hardship 

Undue hardship must be more than inconvenience. It has to create undue hardship for a group, not just a member. A licence that is expensive or hard to get can create undue hardship. But a licence or access fee that is easily available and free or inexpensive would not be undue hardship. 

Preferred Means

Courts look at ancestral practices that are part of the group’s unique culture to decide what ways of exercising their rights are protected. It is not just how the group wants to exercise their right currently. Different ways of fishing (such as trolling) can be a group’s preferred way of exercising their right. 

There must be a connection between the way the right is being exercised now and how it was exercised before what is now Canada was colonized. The way of exercising the right can evolve so it does not need to be exactly the same as it was.

Once a court has ruled that a law violates an Aboriginal or Treaty Right, they look at the reason it was violated. The courts look at two things…

• Does the government have a good reason for the law?
• Does the action by government recognize the government’s responsibility towards Indigenous Peoples?Reason for the Law

Reason for the Law

The reason for the law must be either to recognize a right under section 35 or to balance section 35 rights with the needs of the community as a whole. Reasons that have been accepted by the courts include:

• conservation and resource management
• protecting the environment 
• protecting endangered species
• safety
• following international Treaties
• economic and regional fairness
• economic development including agriculture, forestry, mining and hydroelectric development
• building infrastructure

Some reasons like protecting sport fishing have not been accepted. The reason must also be clear. For example, just saying a law is in the public’s interest is not enough without saying why.

Government’s Responsibilities towards Indigenous Peoples

The courts consider how the government is achieving its goal. This focuses on actions of the government. It does not focus on the process the government used to pass the law. They look at whether the government has considered the impact on Indigenous Peoples and whether they have been fair to them.

To decide this courts consider three things…

• Did the government give priority to the Aboriginal or Treaty rights over other goals, after conservation goals were met?
• Did the government achieve its goal in the way that avoided harm to the right as much as possible?
• Did the government consult with the Indigenous Peoples affected?
• If a right has been taken away, was there fair compensation?