What is the impact of the Employment and Immigration Regulation on aboriginal rights under s. 15(1) of the Charter?

British Columbia, Canada

The following excerpt is from Bob v. R., 2002 BCSC 733 (CanLII):

The plaintiffs allege their rights under s. 15(1) of the Charter have been breached in two ways: (i) Affirmative results in the referendum will bind the Province to a set of guiding principles that embody historical concepts of assimilation and ethnocentrism. These concepts are outmoded and discriminatory against aboriginal people. While the referendum questions appear to direct answers that would establish formal equality they do not address substantive equality. This mandate precludes the Crown from engaging in good faith negotiations that will address the concerns of aboriginal people. Even if the court subsequently declares the Regulation unconstitutional, the Province will continue to be politically and morally bound to their mandate from the referendum. Applying the analytical framework established in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, the plaintiffs submit the Regulation creates adverse effects discrimination on the basis of race, an enumerated ground that is a protected category under s. 15(1) of the Charter, and which affronts the dignity of aboriginal people. (ii) Affirmative results of the referendum will stir up stereotypical discriminatory attitudes in the community and will increase divisiveness and entrench feelings of hostility toward aboriginal people. These feelings will be felt unequally by aboriginal people compared to non-aboriginal people. In support of this submission the plaintiffs rely on the opinion evidence of expert witnesses regarding the effect of referendums on the rights of national minorities, how referendums can influence, if not form, the opinion of the majority, and how the wording of the questions can bias the result.

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