Balancing minority and majority rights CLN4U

Solutions to Inequality As court cases have been decided and governments have passed legislation, there have been various solutions provided to remedy the inequalities of access to human rights As court cases have been decided and governments have passed legislation, there have been various solutions provided to remedy the inequalities of access to human rights Often, these solutions involve a delicate balancing act between minority and majority rights Often, these solutions involve a delicate balancing act between minority and majority rights

Women Pay equity legislation Pay equity legislation Creation and extension of maternity leaves (parental leave also) Creation and extension of maternity leaves (parental leave also) Affirmative action programs Affirmative action programs

Immigrants Supreme Court rulings confirming rights regardless of citizenship Supreme Court rulings confirming rights regardless of citizenship Some attempts at recognizing foreign credentials and qualifications Some attempts at recognizing foreign credentials and qualifications Affirmative action programs (if a visible minority) Affirmative action programs (if a visible minority)

People with Disabilities Legislation guaranteeing access to buildings Legislation guaranteeing access to buildings Government programs to help fund accommodations for employers Government programs to help fund accommodations for employers Affirmative action programs Affirmative action programs

Same-sex couples Benefits now provided to same-sex partners Benefits now provided to same-sex partners Changes to pension rules Changes to pension rules Addition to hate crime legislation Addition to hate crime legislation Same-sex marriage Same-sex marriage

Aboriginal Peoples Specific Charter recognition for Aboriginal rights (section 25) Specific Charter recognition for Aboriginal rights (section 25) Indian Residential Schools Resolution Canada Indian Residential Schools Resolution Canada Government support for Aboriginal initiatives to relearn/preserve traditions Government support for Aboriginal initiatives to relearn/preserve traditions Supreme Court decision clarifying government’s fiduciary duty (based on a relationship of trust - the Crown must act in the best interests of Aboriginals when negotiating with them or on their behalf and mustn’t take advantage of its position) Supreme Court decision clarifying government’s fiduciary duty (based on a relationship of trust - the Crown must act in the best interests of Aboriginals when negotiating with them or on their behalf and mustn’t take advantage of its position) Supreme Court decisions upholding and even expanding traditional hunting and fishing rights. Supreme Court decisions upholding and even expanding traditional hunting and fishing rights. However, there is still a lot of controversy here (Burnt Church) However, there is still a lot of controversy here (Burnt Church) Recognition of oral history as proof in court cases Recognition of oral history as proof in court cases Affirmative action programs Affirmative action programs

Aboriginal Rights (pre-patriation) 3 primary documents governing Aboriginal rights: 3 primary documents governing Aboriginal rights: 1. Royal Proclamation 1763 – guaranteed protection of for Aboriginal lands 2. Section 91 of the Constitution Act 1867 – allowing federal gov’t to pass laws relating to “Indians” 3. Common law relating to Aboriginal title – referring to the negotiation of specific treaties between the Crown and Aboriginal peoples Prior to patriation, Aboriginal rights not entrenched Prior to patriation, Aboriginal rights not entrenched

Aboriginal Rights (post-patriation) Section 35 of the Constitution Act recognizes existing Aboriginal treaty rights Section 35 of the Constitution Act recognizes existing Aboriginal treaty rights Section 25 of the Charter recognizes and supports Aboriginal rights Section 25 of the Charter recognizes and supports Aboriginal rights Aboriginal rights became entrenched after patriation of the Constitution Aboriginal rights became entrenched after patriation of the Constitution These rights were not defined in the Constitution, but were open to interpretation by the courts (a process which is ongoing today) These rights were not defined in the Constitution, but were open to interpretation by the courts (a process which is ongoing today) Courts determine the nature and scope of these rights as cases come before them on issues such as land claims, hunting/fishing rights, etc. Courts determine the nature and scope of these rights as cases come before them on issues such as land claims, hunting/fishing rights, etc.

Ex: R. v. Powley (2003) R v. Powley is the first Supreme Court of Canada case to set out the Aboriginal rights of the Métis people. R v. Powley is the first Supreme Court of Canada case to set out the Aboriginal rights of the Métis people. Established that Métis have Aboriginal hunting rights protected under s. 35 (1) of the Constitution Act. Established that Métis have Aboriginal hunting rights protected under s. 35 (1) of the Constitution Act. Historically, the gov’t rejected Métis claims to Aboriginal rights due to: Historically, the gov’t rejected Métis claims to Aboriginal rights due to: difficulty in defining “Métis” difficulty in defining “Métis” Métis were not here at the time of European contact, and thus could not use the assumption of sovereignty argument Métis were not here at the time of European contact, and thus could not use the assumption of sovereignty argument

Ex: R. v. Powley (2003) In the Powley case, the court set out a test for determining an individual’s Métis identity in order to claim Aboriginal hunting rights: In the Powley case, the court set out a test for determining an individual’s Métis identity in order to claim Aboriginal hunting rights: must self-identify as Métis must self-identify as Métis must have ancestral connection to an historic Métis community must have ancestral connection to an historic Métis community must be accepted by a modern Métis community must be accepted by a modern Métis community Meeting all 3 criteria grants an individual rights under s. 35 of the Constitution. Meeting all 3 criteria grants an individual rights under s. 35 of the Constitution. The Powley case may have ramifications with respect to Métis claims to: The Powley case may have ramifications with respect to Métis claims to: fishing rights fishing rights land claims land claims self government self government