Ameliorative Programs Gaining Recognition in Human Rights Legislation.

• Author: Panos, Linda Mckay

The Canadian Charter of Rights and Freedoms (Charter) provides protection from discrimination in s 15(1). Section 15(2) allows governments to establish programs to ameliorate historical disadvantage of particular minority groups. These programs are sometimes referred to as "affirmative action programs".

While s 15(2) has been in force since 1985, it has only recently achieved a fairly prominent place in case law. Originally, s 15(2) was seen as a descriptive section, meant to support the interpretation of s 15(1). See for example: Lovelace v Ontario (1997), 33 OR (3d) 735 (CA), affirmed 2000 SCC 37.

The role of s 15(2) gained prominence in R v Kapp, 2008 SCC 41 (Kapp). A group of non-indigenous fishers challenged a program designed by the federal government, which had granted exclusive fishing licenses for the Fraser River to three First Nations groups in the region. Because commercial fishers were excluded from the program, they argued that their rights under Charter s 15(1) had been violated--they were discriminated against because they were not a part of the First Nations groups benefiting from the program. The Supreme Court of Canada (SCC) held that if the government could prove that the program targeted a disadvantaged group, and that it was designed to improve the conditions of the group, it would not violate anyone's equality rights under s 15(1). This legal test was further developed in the case of Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 [Cunningham]. The SCC applied the Kapp test for considering whether a government can rely on s 15(2) to "defend" its ameliorative program (at paras 43-44).

In Cunningham, the SCC held that the Alberta Metis Settlement Act, RSA 2000, c M-14, was an ameliorative program protected by Charter s 15(2), because the exclusion of status Indians from formal membership in Metis settlements helped to respect the Metis' right to culture and the role of the Metis in defining themselves as a people. The SCC stated that the ameliorative program: "corresponds to the historic and social distinction between the Metis and Indians, furthers realization of the object of enhancing Metis identity, culture and governance, and respects the role of the Metis in defining themselves as a people" (para 89). The SCC held that it was open to the government to target ameliorative programs at some disadvantaged groups, while excluding others if the program "serves and...