Criteria for Equality: A Comparative Perspective

130. Distinctions and Discriminations. Many, if not most, laws in some way distinguish or differentiate between people on grounds thought to be relevant for the purposes of the law in question. Given the nearly universal need of laws to distinguish or ‘discriminate’, the principles of ‘equality before the law’ or ‘equal protection of the law’ cannot require that laws apply universally or in the same way to all members of the community:

It is incontestable that Parliament has the power to legislate in such a way as to affect one group or class in society as distinct from another without any necessary offence to [the principle of equality before the law in] the Canadian Bill of Rights. The problem arises however when we attempt to determine an acceptable basis for the definition of the special class, and the nature of the special legislation involved. Equality in this context must not be synonymous with mere universality of application. There are many differing circumstances and conditions affecting different groups which will dictate different treatment.[4]

The difficulty, then, is to find a workable test for distinguishing laws which involve proper or acceptable distinctions or differences from those which involve improper or invidious ones. This difficulty is particularly acute when the ‘group or class’ which the law singles out has common features such as a shared culture or language. These features may justify special treatment, or they may be associated with other features which do so. They may also be indicia of a common race, descent or ethnic origin. Yet it is universally agreed that discrimination on the grounds of race or ethnicity is improper, involving a particularly serious violation of the principle of equality. There is thus a tension between the principle of equality and non-discrimination, and the need to make special provision, including special legal provision, for members of minority groups because of the distinct problems they face.

131. Special Laws or Treaties with Indigenous Peoples. The question of ‘special treatment’ for indigenous peoples raises this issue in a clear, and often acute, form. This is especially so in a country such as Australia where the initial response to the Aborigines was to deny them collective rights or any special status by virtue of their own political and social organisation.[5] The early imposition of individual ‘equality’ might be thought to be directly linked to the present situation of many Aborigines; certainly, as a group, equality in fact has not been achieved, according to any of the social indicators.[6] But, economic and material conditions apart, there is the question whether responses to Aboriginal demands of a collective kind (for example traditional claims to land) are now illicit. Had treaties been concluded initially with the various Aboriginal groups, it could not have been argued that compliance with them was discriminatory because the other party to the treaty was composed of members of a particular race or ethnic group. Is the recognition now, to the descendants of those people, of rights or entitlements initially denied, less legitimate? No doubt there are limits to such a recognition: rights may have vested in, others on the faith of earlier transactions; Aborigines themselves may have ceased to share the characteristics which initially called for recognition, or they may not now seek recognition. Recognition now may need to take a different form. But that is not to say that recognition is wrong in principle because those claiming recognition, as an indigenous people, share a particular race, descent or ethnic origin. The history of dealing with such questions in the United States and Canada is different in a number of respects from the Australian history, but the problems now being faced a re not so different, and their experience is therefore of particular interest.

[4]Mackay v R (1980) 114 DLR (3d) 393, 422-3 (McIntyre J). See J Stone, ‘Justice not Equality’, in E Kamenka & AE-S Tay, Justice, Edward Arnold, London, 1979, 97, 100.

[5]See para 21-3, 39, 64-8.

[6]See para 31-6.