Lovelace v. Ontario

Lovelace v. Ontario
Collection
Supreme Court Judgments
Date
2000-07-20
Neutral citation
2000 SCC 37
Report
[2000] 1 SCR 950
Case number
26165
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Arbour, Louise
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 26165
Decision Content
Lovelace v. Ontario, [2000] 1 S.C.R. 950
Robert Lovelace, on his own behalf and on behalf of
the Ardoch Algonquin First Nation and Allies,
the Ardoch Algonquin First Nation and Allies,
Chief Kris Nahrgang, on behalf of
the Kawartha Nishnawbe First Nation,
the Kawartha Nishnawbe First Nation,
Chief Roy Meaniss, on his own behalf and on behalf of
the Beaverhouse First Nation, the Beaverhouse First Nation,
Chief Theron McCrady, on his own behalf and on behalf of
the Poplar Point Ojibway First Nation,
the Poplar Point Ojibway First Nation,
and the Bonnechere Métis Association Appellants
and
Be‑Wab‑Bon Métis and Non‑Status Indian Association and
the Ontario Métis Aboriginal Association Appellants
v.
Her Majesty The Queen in right of Ontario
and the Chiefs of Ontario Respondents
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General for Saskatchewan,
the Council of Canadians with Disabilities,
the Mnjikaning First Nation,
the Charter Committee on Poverty Issues,
the Congress of Aboriginal Peoples,
the Native Women’s Association of Canada and
the Métis National Council of Women Interveners
Indexed as: Lovelace v. Ontario
Neutral citation: 2000 SCC 37.
File No.: 26165.
1999: December 7; 2000: July 20.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Arbour JJ.
on appeal from the court of appeal for ontario
Constitutional law – Charter of Rights – Equality rights – Indians – Proceeds of province’s first reserve‑based commercial casino to be distributed only to Ontario First Nations communities registered as bands under Indian Act – Whether province’s decision to exclude non‑band aboriginal communities from casino proceeds and from participating in the negotiations infringing s. 15(1) of Canadian Charter of Rights and Freedoms .
Constitutional law – Charter of Rights – Equality rights – Relationship between ss. 15(1) and 15(2) of Canadian Charter of Rights and Freedoms .
Constitutional law – Division of powers – Indians – Proceeds of province’s first reserve‑based commercial casino to be distributed only to Ontario First Nations communities registered as bands under Indian Act – Whether province’s decision to exclude non‑band aboriginal communities ultra vires – Whether province exercising its spending power – Constitution Act, 1867, s. 91(24) .
In the early 1990s, First Nations bands approached the Ontario government for the right to control reserve‑based gaming activities. The profits from these activities were to be used to strengthen band economic, cultural, and social development. As a result, Ontario and representatives from Ontario’s First Nations entered into a process of negotiations with the goal of partnering in the development of the province’s first reserve‑based commercial casino. In 1996, the appellants were informed by the province that the casino’s proceeds (“First Nations Fund”) were to be distributed only to Ontario First Nations communities registered as bands under the Indian Act . At the individual level, all of the appellate groups have members who have, or are entitled to, registration as individual “Indians” pursuant to the Indian Act ; however, as communities, the appellant groups are non‑status since they are not registered as Indian Act “bands”, and do not have reserve lands. At motions court, the appellants successfully sought a declaration that Ontario’s refusal to include them in the casino project was unconstitutional and that they should be allowed to participate in the distribution negotiations. The judge held that (1) the exclusion of the appellants from the First Nations Fund violated their equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms and was not justified under s. 1 ; (2) s. 15(2) of the Charter could not be invoked as a defence to the s. 15(1) violation; and (3) Ontario’s actions were ultra vires because of s. 91(24) of the Constitution Act, 1867 . The Court of Appeal set aside the decision, finding that the motions judge had misapprehended the facts and made errors in law. On the basis that the main object of the casino project was to ameliorate the social and economic conditions of bands, the court held that the casino project was authorized by s. 15(2) of the Charter and could not therefore constitute discrimination under s. 15(1) . The Court of Appeal held also that the province did not act ultra vires the Constitution Act, 1867 as the province simply exercised its spending power.
Held: The appeal should be dismissed.
This appeal should be decided on the basis of s. 15(1) of the Charter . Although the Court of Appeal’s decision was based on the application of s. 15(2) , it was rendered without the benefit of this Court’s decision in Law. Law requires that the determination of a discrimination claim be grounded in three broad inquiries: (1) whether the law, program or activity imposes differential treatment between the claimant and others; (2) whether this differential treatment is based on one or more enumerated or analogous grounds; and (3) whether the impugned law, program or activity has a purpose or effect that is substantively discriminatory. Each of these inquiries proceeds on the basis of a comparative analysis which takes into consideration the surrounding context of the claim and the claimant.
Section 15(1) is to be interpreted in a purposive and contextual manner. The main focus of the inquiry is to establish whether a conflict exists between the purpose or effect of an impugned law and the purpose of s. 15(1) , which is to protect against the violation of essential human dignity. The contextual analysis is a directed inquiry; it is focused through the application of contextual factors which have been identified as being particularly sensitive to the potential existence of substantive discrimination. Further, the determination of the appropriate comparator and the evaluation of the context must be examined from the reasonable perspective of the claimant. The question to be asked is whether, taking the perspective of a “reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim”, the law has the effect of demeaning a claimant’s human dignity. The s. 15(1) scrutiny, which applies to comprehensive benefit schemes as well as targeted ameliorative programs, is not limited to distinctions set out only in legislation. The activities relating to the First Nations Fund undertaken by the provincial government are open to Charter scrutiny as actions taken under the statutory authority of s. 15(1) of the Ontario Casino Corporation Act, 1993.
The s. 15(1) inquiry must proceed in this case on the basis of comparing band and non‑band aboriginal communities. It is clear that the appellants have been subjected to differential treatment since the province confirmed that they were excluded from a share in the First Nations Fund and any related negotiation process. However, it is not necessary to decide whether the differential treatment was based on an enumerated or analogous ground in view of the finding at the third stage of the inquiry that even if these grounds are present there is no discrimination in the circumstances of this case.
Four contextual factors provide the basis for organizing the third stage of the discrimination analysis: (i) pre‑existing disadvantage, stereotyping, prejudice, or vulnerability; (ii) the correspondence, or lack thereof, between the ground(s) on which the claim 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. The relative disadvantage of the claimant, as assessed in relation to the comparator group, does not stand alone as constituting a fifth contextual factor. The broad and fully contextual s. 15(1) analysis transcends the superficiality of a simple balancing of relative disadvantage. The inappropriateness of a relative disadvantage approach is highlighted by the unique circumstances of this case, where the disadvantages suffered both by the claimants and the comparator group must be acknowledged.
An analysis of the four contextual factors leads to the conclusion that the First Nations Fund does not conflict with the purpose of s. 15(1) and does not engage the remedial function of the equality right. While the appellants have established pre‑existing disadvantage, stereotyping, and vulnerability, they have failed to establish that the First Nations Fund functioned by device of stereotype. Instead, the distinction corresponded to the actual situation of individuals it affects, and the exclusion did not undermine the ameliorative purpose of the targeted program. Second, while the appellants’ needs correspond to the needs addressed by the casino program, for both the appellant and respondent aboriginal communities face these same social problems, the correspondence consideration requires more than establishing a common need. A consideration of the correspondence between the actual needs, capacities, and circumstances on the one hand, and the program on the other, indicates that the appellant aboriginal communities have very different relations with respect to land, government, and gaming from those anticipated by the casino program. Third, the focus of the ameliorative purpose analysis is not the fact that the appellant and respondent groups are equally disadvantaged, but that the program was targeted at ameliorating the conditions of a specific disadvantaged group rather than a disadvantage potentially experienced by any member of society. Although the targeted ameliorative program is alleged to be underinclusive, one must recognize that exclusion from a targeted or partnership program is less 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. Here, the ameliorative purpose of the overall casino project and the related First Nations Fund has clearly been established. The First Nations Fund will provide bands with resources in order to ameliorate specifically social, health, cultural, education, and economic disadvantages, thereby increasing the fiscal autonomy of the bands and supporting the bands in achieving self‑government and self‑reliance. The First Nations Fund has a purpose that is consistent with s. 15(1) of the Charter and the exclusion of the appellants does not undermine this purpose since it is not associated with a misconception as to their actual needs, capacities and circumstances. Lastly, with respect to the nature of the interest affected, the targeted arrangement and circumstances surrounding the First Nations Fund do not result in any lack of recognition of the appellants as self‑governing communities. To the extent that there is any such effect in this respect, it is remote.
Therefore, the appellants have failed to demonstrate that, viewed from the perspective of the reasonable individual, in circumstances similar to those of the appellants, the exclusion from the First Nations Fund has the effect of demeaning the appellants’ human dignity. This conclusion was reached despite a recognition that the appellant and respondent aboriginal communities have overlapping and largely shared histories of discrimination, poverty, and systemic disadvantage that cry out for improvement. The contextual analysis reveals an almost precise correspondence between the casino project and the needs and circumstances of the First Nations bands. The casino project was undertaken by Ontario in order to further develop a partnership or a “government‑to‑government” relationship with Ontario’s First Nation band communities. It is a project that is aimed at supporting the journey of these aboriginal groups towards empowerment, dignity, and self‑reliance. While it is not designed to meet similar needs in the appellant aboriginal communities, its failure to do so does not amount to discrimination under s. 15.
At this stage of the s. 15 jurisprudence, s. 15(2) of the Charter should be understood as confirmatory of s. 15(1). In that respect, claimants arguing equality claims in the future should first be directed to s. 15(1) since that subsection can embrace ameliorative programs of the kind that are contemplated by s. 15(2) . By doing that one can ensure that the program is subject to the full scrutiny of the discrimination analysis, as well as the possibility of a s. 1 review. However, in view of emerging equality jurisprudence, the possibility is not foreclosed that s. 15(2) may be independently applicable to a case in the future.
Finally, the province did not act ultra vires in partnering the casino initiative with Indian Act registered aboriginal communities. The exclusion of non‑registered aboriginal communities did not act to define or impair the “Indianness” of the appellants since the province simply exercised its constitutional spending power in making the casino arrangements. There is nothing in the casino program affecting the core of the s. 91(24) federal jurisdiction. Consequently, this casino program cannot have the effect of violating the rights affirmed by s. 35(1) of the Constitution Act, 1982 and does not approach the core of aboriginality.
Cases Cited
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Powley, [1999] 1 C.N.L.R. 153, varied (2000), 47 O.R. (3d) 30, leave to appeal granted, [2000] O.J. No. 1063 (QL); Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; R. v. Pamajewon, [1996] 2 S.C.R. 821; R. v. Perry, [1996] 2 C.N.L.R. 167, rev’d (1997), 148 D.L.R. (4th) 96, leave to appeal dismissed, [1997] 3 S.C.R. xii; Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387; R. v. Willocks (1995), 22 O.R. (3d) 552; Battlefords and District Co‑operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; M. v. H., [1999] 2 S.C.R. 3; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Egan v. Canada, [1995] 2 S.C.R. 513; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Vriend v. Alberta, [1998] 1 S.C.R. 493; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Collins v. Canada, [2000] 2 F.C. 3; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Miron v. Trudel, [1995] 2 S.C.R. 418; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Swain, [1991] 1 S.C.R. 933; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Manitoba Rice Farmers Association v. Human Rights Commission (Manitoba) (1987), 50 Man. R. (2d) 92; Silano v. The Queen in Right of British Columbia (1987), 42 D.L.R. (4th) 407; Re MacVicar and Superintendent of Family Children Services (1986), 34 D.L.R. (4th) 488; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R.157; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Constitution Act, 1867, s. 91(24) .
Constitution Act, 1982, s. 35(1) .
Criminal Code, R.S.C., 1985, c. C‑46, s. 207 [rep. & sub. c. 52 (1st Supp.), s. 3 ; am. 1999, c. 5, s. 6].
Indian Act, R.S.C., 1985, c. I‑5, ss. 2(1) “band”, “Indian”, “reserve” [rep. & sub. c. 17 (4th Supp.), s. 1 ], 6 [rep. & sub. c. 32 (1st Supp.), s. 4 ; am. c. 43 (4th Supp.), s. 1 ], 17 [rep. & sub. c. 32 (1st Supp.), s. 7 ], 74(1).
Ontario Casino Corporation Act, 1993, S.O. 1993, c. 25, ss. 1, 15 [am. 1996, c. 26, s. 5].
Authors Cited
Agocs, Carol, and Monica Boyd, “The Canadian Ethnic Mosaic Recast for the 1990s”. In James Curtis, Edward Grabb and Neil Guppy, eds., Social Inequality in Canada: Patterns, Problems, Policies, 2nd ed. Scarborough, Ont.: Prentice Hall Canada, 1993, 330.
Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vols. 1 (Looking Forward, Looking Back) and 3 (Gathering Strength). Ottawa: The Commission, 1996.
Drumbl, Mark A., and John D. R. Craig. “Affirmative Action in Question: A Coherent Theory for Section 15(2) ” (1997), 4 Review of Constitutional Studies 80.
Iacobucci, Edward M. “Antidiscrimination and Affirmative Action Policies: Economic Efficiency and the Constitution” (1998), 36 Osgoode Hall L.J. 293.
Ontario. Law Reform Commission. Litigating the Relationship Between Equity and Equality. Study paper prepared by Colleen Sheppard. Toronto: The Commission, 1993.
Orton, Helena. “Section 15 , Benefits Programs and Other Benefits at Law: The Interpretation of Section 15 of the Charter since Andrews” (1990), 19 Man. L.J. 288.
Tarnopolsky, Walter S. “The Equality Rights in the Canadian Charter of Rights and Freedoms ” (1983), 61 Can. Bar Rev. 242.
United Nations. Committee on Economic, Social and Cultural Rights. Concluding Observations of the Committee on Economic, Social and Cultural Rights (Canada), E/C. 12/1/Add.31, 4 December 1998.
APPEAL from a judgment of the Ontario Court of Appeal (1997), 33 O.R. (3d) 735, 100 O.A.C. 344, 44 C.R.R. (2d) 285, 148 D.L.R. (4th) 126, [1998] 2 C.N.L.R. 36, [1997] O.J. No. 2313 (QL), allowing an appeal from a decision of the Ontario Court (General Division) (1996), 38 C.R.R. (2d) 297, [1997] 1 C.N.L.R. 66, [1996] O.J. No. 5063 (QL), [1996] O.J. No. 3176 (QL), declaring that the exclusion of the appellants from the First Nations Fund violated s. 15(1) of the Canadian Charter of Rights and Freedoms . Appeal dismissed.
Christopher M. Reid, for the appellants Robert Lovelace et al.
Robert MacRae and Michael S. O’Neill, for the appellants Be‑Wab‑Bon Métis and Non‑Status Indian Association and the Ontario Métis Aboriginal Association.
Lori R. Sterling and Sarah Kraicer, for the respondent Her Majesty the Queen in right of Ontario.
Michael W. Sherry, for the respondent the Chiefs of Ontario.
Urszula Kaczmarczyk and Michael H. Morris, for the intervener the Attorney General of Canada.
Isabelle Harnois and Pierre‑Christian Labeau, for the intervener the Attorney General of Quebec.
Kurt Sandstrom and Marilyn Poitras, for the intervener the Attorney General for Saskatchewan.
M. Philip Tunley and Jane A. Langford, for the intervener the Mnjikaning First Nation.
Marc J. A. LeClair and Joseph E. Magnet, for the intervener the Congress of Aboriginal Peoples.
Mary Eberts and Lucy McSweeney, for the intervener the Native Women’s Association of Canada.
Written submissions only by David Baker, for the intervener the Council of Canadians with Disabilities.
Written submissions only by Cynthia Petersen, for the intervener the Charter Committee on Poverty Issues.
Written submissions only by Kathleen A. Lahey, for the intervener the Métis National Council of Women.
The judgment of the Court was delivered by
Iacobucci J. –
I. Introduction
1 In 1993, the Province of Ontario and representatives from Ontario’s First Nations entered into a process of negotiations with the goal of partnering in the development of the province’s first reserve-based commercial casino, which was to become Casino Rama. Profits from the casino were to be shared among Ontario’s First Nations. Ultimately, the reserve site of the Chippewas of Mnjikaning First Nation (formerly known as Rama First Nation) was selected and a development and operations agreement was reached between Ontario, Carnival Hotels and Casinos Canada Ltd. (Ontario’s operations agent), and Mnjikaning First Nation. Subsequently, Casino Rama opened its doors to the public in the summer of 1996. Meanwhile, the province and representatives of the Chiefs of Ontario had begun a process of negotiating the terms for distributing the casino’s proceeds (“First Nations Fund”) to the First Nations communities. In the spring of 1996, the province informed the appellant aboriginal communities that the First Nations Fund was to be distributed only to Ontario First Nations communities registered as bands under the Indian Act, R.S.C., 1985, c. I-5 .
2 The following is a brief summary of what this appeal decides and what it does not decide.
3 In basic terms, this appeal requires a determination of the constitutionality of the exclusion of non-band aboriginal communities from sharing in the proceeds, and from negotiating the distribution terms for the First Nations Fund. Specifically, the question is whether the First Nations Fund’s underinclusiveness violates the appellants’ equality rights as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms . We must also determine whether the province’s decision to exclude the appellants on the basis that they are not bands under the Indian Act was ultra vires its jurisdiction under the Constitution Act, 1867 .
4 At the outset, I wish to note that this appeal has raised collateral issues which are of great importance; among them are the constitutionality of the Indian Act and the scope of the federal jurisdiction with respect to Métis and non-registered First Nation peoples pursuant to s. 91(24) of the Constitution Act, 1867 . Although the substantive equality analysis obliges the Court to consider the circumstances of these appellant aboriginal communities, including the social realities relating to their exclusion from, or non-participation in, the Indian Act regime, these important collateral issues are not properly raised in this appeal and, therefore, cannot be decided herein. Similarly, it is neither necessary nor appropriate for this Court to decide or comment upon the responsibilities of provincial governments with respect to these matters.
5 This appeal also raises the question of the proper interpretation of s. 15(2) of the Charter . Indeed, the decision of the Ontario Court of Appeal below was based on the application of s. 15(2) . However, the Court of Appeal’s interpretation of s. 15(2) was decided without the benefit of this Court’s decision in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, which synthesized a number of approaches in the equality jurisprudence of the Court and provided a set of guidelines for the analysis of a discrimination claim under the Charter . After a brief review of the Law analytical framework and a consideration of s. 15(2) , I conclude that this appeal is properly decided on the basis of the existing s. 15(1) substantive equality framework.
6 With respect to s. 15(1) , in my view the exclusion of the non-band aboriginal communities from the First Nations Fund does not violate s. 15 of the Charter . I reach this conclusion despite a recognition that, regrettably, the appellant and respondent aboriginal communities have overlapping and largely shared histories of discrimination, poverty, and systemic disadvantage that cry out for improvement.
7 In my opinion, a contextual analysis reveals an almost precise correspondence between the casino project and the needs and circumstances of the First Nations bands. The casino project was undertaken by the province of Ontario in order to further develop a partnership or a “government-to-government” relationship with Ontario’s First Nations band communities. It is a project that is aimed at supporting the journey of these aboriginal groups towards empowerment, dignity, and self-reliance. It is not, however, designed to meet similar needs in the appellant aboriginal communities, but its failure to do so does not amount to discrimination under s. 15 .
8 Finally, I conclude that the province did not act ultra vires in partnering the casino initiative with Indian Act registered aboriginal communities. The exclusion of non-registered aboriginal communities did not act to define or impair the “Indianness” of the appellants since the province simply exercised its constitutional spending power in making the casino arrangements.
II. Factual and Contextual Background
A. Introduction
9 There is no dispute as to the appellants’ aboriginality or their self-identification as either Métis or First Nations. None of the appellants has claimed an aboriginal right to the First Nations Fund or access to the negotiation process pursuant to s. 35(1) of the Constitution Act, 1982 . The seven appellant groups are divided into two groups: (i) the Lovelace non-band First Nations appellants and (ii) the Be-Wab-Bon Métis appellants. The Lovelace appellants comprise five non-band First Nations communities: the Ardoch Algonquin First Nation and Allies (“Ardoch First Nation”), the Kawartha Nishnawbe First Nation (“Kawartha”), the Beaverhouse First Nation, the Poplar Point Ojibway First Nation (“Poplar Point”), and the Bonnechere Métis Association. The two Be-Wab-Bon Métis appellants are: the Ontario Métis Aboriginal Association (“OMAA”), and the Be-Wab-Bon Métis and Non-Status Indian Association (“Be-Wab-Bon”). Essentially, this appellant sub-group identifies itself as rural Métis peoples even though their membership includes non-status or off-reserve First Nations members.
10 Although the two appellant groups are primarily distinguished as being either First Nations or Métis, each of the seven appellant groups has its own unique history, culture, political goals, and relations with government. Indeed, this is a case which immediately invokes a deep appreciation for the diversity of Canada’s aboriginal population (see R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 67). Given this complexity, it is neither possible nor desirable to draw bright lines between or among any of the aboriginal communities involved in these proceedings, especially given the limits of the litigation record in the appeal. With those qualifications in mind, the following represents my attempt to describe the appellants and respondents for purposes of deciding the issues arising in this appeal.
B. Appellants
11 All of the appellants, except for the OMAA, identify as communities. Although Be-Wab-Bon and the Bonnechere Métis Association have formally incorporated as non-profit service organizations, they reported doing so in order to create an “organizational voice for [the] community” and to access project funding. The OMAA is a non-profit organization, incorporated in order to represent the interests of off-reserve aboriginal peoples in issues relating to land, resources, social services, housing, education, economic development, and efforts focused at achieving recognition of inherent aboriginal rights. While seeking a right to participate in the negotiations relating to the distribution of the First Nations Fund, the OMAA does not seek to share in the distributed revenue.
12 The Lovelace appellants may be described as communities with traditional First Nations forms of government. Respectively, they identify ancestral roots in the Mississauga (Kawartha), Algonquin (Bonnechere Métis Association and Ardoch First Nation), and Ojibway (Poplar Point and Beaverhouse) Nations. Their ancestral, community, political and social structures are family- or clan-based, where families have been linked together by shared use of lands and common social interests. They have established councils of heads of families and a chief or spokesperson is elected by the community. The Bonnechere Métis Association’s corporate structure has integrated a key feature of traditional Algonquin government with the formal institution of the Elder’s Circle as the organization’s most powerful decision-maker.
13 The two Be-Wab-Bon appellants did not advance a common definition of “Métis”, and, in this respect, I note that this issue remains politically and legally contentious (see R. v. Powley, [1999] 1 C.N.L.R. 153 (Ont. Ct. (Prov. Div.)), varied (2000), 47 O.R. (3d) 30 (S.C.J.), leave to appeal granted April 3, 2000, [2000] O.J. No. 1063 (QL) (C.A.). Full membership in the Be-Wab-Bon Métis community requires that an individual establish an aboriginal ancestor within four generations. Alternatively, Michael McGuire, the president of the OMAA, put forward a definition of Métis which includes those individuals who: (i) identify as a Métis, (ii) are recognized and accepted by the community, and (iii) are of aboriginal descent.
14 With the exception of the Beaverhouse First Nation, the appellants have expressed a profound ambivalence, and sometimes open aversion, towards the Indian Act regime. Beaverhouse First Nation has been seeking registered band and reserve status for quite some time and became a party to this litigation given their uncertainty about whether they, as a non-band, would benefit from the First Nations Fund. The reasons for the appellants’ non-registration under the Indian Act are historically long-standing, community-specific, and complex (see Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at pp. 303-14). At this point in history, the Métis and four of the non-band First Nations appellants have, each in their own way, initiated a number of political efforts directed at achieving provincial and federal government recognition as special non-registered aboriginal communities outside of the Indian Act ’s statutory framework.
15 Even if the appellants were to seek band membership, there is very little assurance of success. An application may be made for band registration pursuant to s. 17 of the Indian Act , however, no bands have been registered since 1985 and the related federal policies and procedures are onerous. Specifically, an applicant First Nation community must be comprised entirely of registered Indians, and, since the federal government will not provide any “new” funding, the applicant community must persuade a recognized band to share its funding and land base. Counsel for the Lovelace appellants summarized this position as follows:
... even if the appellant communities could somehow qualify for band status, they would then be forced to abandon their traditional forms of government, which have played a vital role in their survival as distinct communities, and replace them with Indian Act band councils. It is the view of the appellants that the Indian Act system of local governance promotes corruption and divisions between community members, and fails to recognize the key role of Elders in community governance. The traditional forms of government, on the other hand, promote harmony, tolerance, respect and accountable, democratic local government. It is questionable whether the appellant communities could bring themselves to adopt the Indian Act system, even if it were an option for them.
16 In this case, it is particularly important to note the Indian Act distinction between individual and community registration, since the province excluded the appellants on the basis of community or “band” status. At the individual level, all of the appellant groups have members who have, or are entitled to, registration as individual “Indians” pursuant to the Indian Act . An aboriginal person would be considered non-status if that individual either chose not to register or could not register in compliance with the statutory requirements set out in s. 6 of the Indian Act . As communities, the appellant groups are non-status since they are not registered as Indian Act “bands”, and do not have reserve lands. Section 2 of the Indian Act defines “band” as a body of Indians “for whose use and benefit in common” reserved lands or moneys have been set apart by the Crown. Generally, there is a direct relationship between individual registration as an “Indian” and band membership, and most bands are almost exclusively made up of Indian Act registered Indians. However, as is the case with these appellant groups, it is possible that individually registered Indians, or groups thereof, have not become members of bands.
17 The relationship of the six appellant communities to the land is unique and culturally-specific. As an isolated, remote, village-based and wholly aboriginal community, Beaverhouse First Nation most closely resembles typical conceptions about what constitutes a reserve-based aboriginal community. In contrast, the communities of the other five appellants are much less village- or centre-specific, with community members dispersed throughout respective rural regions identified as their traditional homelands. Some of the appellants emphasized that the dispersed nature of their community base reflects their adherence to traditional ways, even though the lack of a federally registered land base means “a constant struggle to maintain a connected, united community”.
C. Respondents
18 The respondent Chiefs of Ontario is an incorporated non-profit organization which coordinates and represents the interests of 133 Ontario First Nations registered as bands under the Indian Act . The Ontario Regional Chief leads the organization and sits as an ex officio member of the executive of the Assembly of First Nations, a major national status Indian organization. The Chiefs of Ontario also represents a small number of aboriginal communities without band or reserve registration. Twelve of these are communities registered as bands, however they are in the process of obtaining a reserve, and seven other communities are attempting to secure a reserve base along with band registration.
19 Most bands hold reserve lands, and the Indian Act provides a federally based legal regime for the identification, management, and accountability of First Nations bands. The Indian Act provides for the establishment and maintenance of membership lists, and the management of moneys and reserve lands for the use and benefit of Indians and bands. Each band has a representative political structure, where the chiefs and councils are chosen following the band’s custom, or, if an order in council has been made under s. 74(1) of the Indian Act , by the procedures set out in the Act (see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 26).
20 As noted above, the bulk of the Chiefs of Ontario membership is made up of bands with reserves, however, generally only half of band members live on the reserve. Nonetheless, it is clear that off-reserve band members maintain cultural and political interests in, and connections to, their band and reserve such that one can view bands as characteristically land- or reserve-based with communities that extend beyond the boundaries of the reserve (see Corbiere, supra, at paras. 80-81).
21 With these brief descriptions of the parties, I now wish to deal briefly with the matter of gaming relations involving aboriginals and the province of Ontario.
D. Gaming and the Relationship of the Province to Ontario’s First Nations Bands
22 For Ontario’s First Nations bands, a nexus has emerged between gaming and self-government efforts, and has involved the development of corresponding relations with the province. The province’s jurisdiction for gaming activities arises by virtue of s. 207 of the Criminal Code, R.S.C., 1985, c. C-46 , which permits gambling activities which are provincially licensed, managed, and strictly regulated. In turn, most provincial licensing authority for charitable gaming was delegated to municipalities by order in council. Before the early 1990s, most Ontario gaming was limited to licensed charitable gaming. Many bands were involved in this form of gaming; however, since reserves are not subject to municipal jurisdiction these communities received their licenses directly from the province.
23 In 1992, the province announced its intention to go beyond charitable gaming activities and enter the field of commercial casino gaming. Windsor, Ontario, was chosen as a pilot project in 1992, and the province created the Ontario Casino Corporation in order to manage casino gaming in accordance with the newly enacted Ontario Casino Corporation Act, 1993, S.O. 1993, c. 25.
24 First Nations bands had identified gaming initiatives as a vehicle for providing an economic base for self-government activities. Consequently, between 1991 and 1993, First Nations bands approached the provincial government for the right to control reserve-based gaming activities, asserting an inherent aboriginal right to operate gaming activities without having to acquire a provincial licence. The profits from these activities were to be used to strengthen band economic, cultural, and social development. In particular, the Shawanaga First Nation strongly asserted that an aboriginal right to self-government included the right to self-regulate gaming activities (see R. v. Pamajewon, [1996] 2 S.C.R. 821).
25 All of this was occurring during the Charlottetown Accord constitutional debates. However, the failure of the Accord meant the demise of a number of provisions supporting aboriginal self-government which had been a part of the Accord package. Consequently, Ontario’s First Nations bands sought alternative routes to self-government. One such effort took shape with the negotiation and signing of the Statement of Political Relationship (“SPR”), signed in August 1991 by Ontario, and the Chiefs of Ontario. This agreement provided the basis of establishing “government-to-government” relations between the province and bands, and committed these parties to negotiate the exercise and the implementation of First Nations jurisdiction and self-reliance.
26 In 1991 and 1992, preliminary meetings were held with different First Nations bands to discuss the various ways in which gaming and other economic development issues could be addressed. In this process, Ontario was motivated to consider a reserve-based commercial casino in order to further its commitment to the SPR, as well as to establish more accountable gaming practices on the reserves. Meetings continued between Ontario and the bands and, in 1993, this process resulted in the mutually agreed upon site selection criteria and the striking of an independent First Nations panel to review site proposals.
27 In 1994, the membership of the site selection panel was finalized and submissions were invited. By December 1994, the panel announced the selection of the Chippewas of Rama (Mnjikaning) site, and on May 1, 1995, the Ontario Casino Corporation and the Mnjikaning First Nation issued a request for proposals for the operation and construction of the casino. On October 11, 1995, Carnival Hotels and Casinos (“Carnival”) was announced as the company that would act as the province’s agent in developing and operating the casino. A development and operating agreement was signed between Mnjikaning, the province, and Carnival on March 18, 1996. Also, in March 1996, the Ontario Native Affairs Secretariat (“ONAS”) began negotiations for the administration of the First Nations Fund with the bands. To that end, the respondent Chiefs of Ontario selected a committee in order to represent the bands at the negotiating table. On June 29, 1996, the official opening of the casino was announced for July 31, 1996.
E. Gaming and the Province’s Relationship with Métis and Non-Band First Nations
28 At various times, the Métis appellants have also undertaken self-governme