The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia

Abstract

In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.