Date: 20060912
Docket: T-1509-04
Citation: 2006 FC 1088
Montréal,
Quebec,
September 12, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ALICE MAXINE JAIME GRISMER
and ALEXIS JORDANA MCIVOR-GRISMER
Applicants
and
SQUAMISH INDIAN BAND
A.K.A.
SQUAMISH NATION COUCIL
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
is an application for judicial review of two decisions of the Squamish Nation
Membership Appeals Committee (the Appeals Committee) dated July 22, 2004, which
dismissed the applicants’ appeals to obtain membership in the Squamish Nation.
I. Membership in Squamish
Indian Band
[2]
The
Squamish Nation is an aboriginal nation and a band as defined under the Indian
Act, R.S.C. 1985, c. I-5 (the Act). According to the uncontradicted
evidence submitted on behalf of the respondent, the Squamish Nation has existed
since prior to contact with Europeans as a distinct, identifiable aboriginal
group, with its own language and identified with a specific geographical area.
Anthropologists have referred to this pre-Contact and pre-Indian Act
entity as the Squamish Tribe.
[3]
Although
members of the Squamish Tribe were based on localized groups of Squamish people
associated with specific villages, membership to these localized groups was
controlled in accordance with criteria that were recognized throughout the
larger Squamish Tribe. Membership to a Squamish local group depended on a
blood-line connection to Squamish ancestors.
[4]
The
Squamish practice of defining its own membership was interrupted in 1874, with
the coming into force of the former Indian Act (An Act providing for
the organisation of the Department of the Secretary of State of Canada, and for
the management of Indian and Ordnance Lands, S.C. 1868, c. 42 (31 Vict)) in
British
Columbia.
From then on, the Department of Indian Affairs regulated membership in Indian
bands, including the Squamish. This regulation was increased in 1951 with the
adoption of a membership list maintained by the Department of Indian Affairs.
[5]
The
Department of Indian Affairs initially administered the False Creek, Capilano River,
Missions Creek and Seymour River villages as individual Squamish bands.
However, this system of administration was contrary to the Squamish system of
organization. In 1923, the various Squamish bands were amalgamated into a
single band called the Squamish Nation.
[6]
In
1985, Parliament passed Bill C-31, which brought significant changes to the
membership provisions – now found under section 10 of the Act – that allowed
the band to regain control over their membership. The Squamish took immediate
advantage of this provision. A membership Code that based qualification for
membership on being a “natural-born” Squamish person, in accordance with
Squamish traditions, was ratified on June 8, 1987. On July 14, 1987, the
Department of Indian Affairs confirmed that the Squamish had assumed control
over their own membership.
[7]
Due
to some problems with the application – “natural born member of the
Squamish Nation” had not been defined under the 1987 Membership Code – consultation
rounds took place between 1993 and 1996 to see if the Membership Code should be
amended. Throughout this process, members of the Squamish Nation expressed a
desire to maintain a blood-quantum requirement for membership in order to ensure
the preservation of the collective Squamish identity and cultural traditions.
This led to the adoption of the 2000 Membership Code.
[8]
The
Membership Code of 2000 established three categories of members: 1) Descendant
members, 2) lineal members, and 3) acquired members. Descendant
members are in a situation similar to that of members who had been classified
as having 100% Squamish blood under the 1987 Code. They have the full ability
to pass entitlement to membership to their children. Lineal members are in a
situation similar to that of members who had previously been classified as
having 50% Squamish blood under the 1987 Code. They have only limited rights to
pass on membership to their children. Acquired members are primarily children
with Indian status who have been adopted by two Squamish parents. This category
also includes women from other First Nations who are married to Squamish
members. A member of this category cannot pass on membership entitlement to his
or her children.
II. Facts leading to the present
judicial review application
[9]
Alice
Maxine Jaime Grismer (Jaime) and Alexis Jordana McIvor-Grismer (Jordana) are
two sisters (the applicants) born respectively in 1976 and 1983. The
applicants’ biological mother, Ms. Sharon McIvor, is a member of the Lower
Nicola Indian Band. In 1992, while they were minors, the applicants moved to Ottawa with their
mother and Ms. Teressa Nahanee, a member of the Squamish Nation.
[10]
In
2001, Ms. McIvor and Ms. Nahanee made an application under British
Columbia’s
Adoption Act, R.S.B.C. 1996, c. 5, to legally adopt Jaime and
Jordana as their children. An Order of Adoption was issued by the Supreme
Court of British Columbia on November 29, 2001. Both sisters were adults at the
time of the adoption. The applicants subsequently obtained Indian status under paragraphs 6(1)(f)
and 11(2)(b) of the Act. On June 6, 2002 the applicants became members of the
Lower Nicola Indian Band to which their biological mother belonged.
[11]
On
July 15, 2003, the applicants made an application for transfer of membership to
the Squamish Nation based on their link to Ms. Nahanee, their adoptive mother.
On August 12, 2003, the Squamish Nation Membership Committee denied the
applications for the following reasons:
1. Your application was made under
section 7 (b)(i) of the Squamish Nation Membership Code 2000. This section
states:
7. (…) the following persons are entitled
to have their names entered on the Membership List as lineal members:
(…)
(b) a person with
(i) one biological parent who is, or if
no longer living would be, if alive, entered on or entitled to be entered on
the Membership List as a descendant member (…).
We note that your application is based on
the membership of your parent, Teressa Nahanee, in the Squamish Nation. However,
Ms. Nahanee is not your biological parent and therefore you are not entitled
through her to membership in the Squamish Nation under 7(b)(i).
2. The Membership Committee also
considered your entitlement under section 9(a) of the Squamish Nation Membership
Code 2000. This section states:
9. Subject to section 14, the following
persons may apply to the Membership Committee to have their names entered on
the Membership List as acquired members
(a) an Indian child under the age of 18
years who has been adopted by parents, both of whom are, or if no longer
living, were members (…)
We note that at the time of your
application, you were 20 years old [26 years old in Jaime’s case] and therefore
exceeded the age restriction set out in section 9(a).
Therefore, based on the above, it is with
regret that the Membership Committee of the Squamish Nation denies your
application for membership in the Squamish Nation. If you disagree with the
decision of the Membership Committee you may, pursuant to section 28 of
the Squamish Nation Membership Code 2000, file an appeal to the Appeals
Committee of the Squamish Nation. Section 28 requires than an appeal must
be received by the Appeals Committee within 90 days of the date of your receipt
of this letter.
[12]
The
applicants appealed the decisions to the Membership Appeals Committee. Ms. Nahanee
told the Appeals Committee that she was having a house built on the Capilano
Indian Reserve and that she planned to leave the house in her will to both of her
adopted daughters. In order to be considered for the inheritance of the house,
the Custom Housing Policy of the Squamish Nation required that the applicants
be members of the Squamish Nation.
[13]
On
April 30, 2004, the Appeals Committee unanimously determined to uphold the
decisions of the Membership Committee:
After carefully considering your
presentation and the materials before it, the Squamish Nation Membership
Appeals Committee (the Appeals Committee) unanimously determined to uphold the
decision of the Squamish Nation Membership Committee (The Membership
Committee).
The Membership Committee had determined
that you were not eligible for membership under either 7(b)(i) or section 9(a)
of the Squamish Nation Membership Code (the “Code”). At your appeal hearing you
indicated that you were appealing the decision of the Membership Committee on
the basis of section 7(b)(i) of the Code.
Section 7(b)(i) provides individuals with
an entitlement to membership if they have one biological parent that is
entered on the Squamish Nation’s membership list. Although Teresse Nahanee is a
descendent member of the Squamish Nation, she is not your biological
parent. You are therefore not entitled to membership under section 7(b)(i).
Section 9 of the Code permits certain
individuals that have been adopted by Squamish Nation members to apply to have
their names entered on the membership list. Your application under this section
was denied by the Membership Committee, and you did not pursue an appeal
pursuant to that section. Consequently, the Appeals Committee has not
considered section 9.
The Code was approved by the membership
of the Squamish Nation. If the Code changes in the future, you may be entitled
to reapply for membership.
The Appeals Committee would like to point
out that its decision has no effect on your native status or any entitlement
you have with another First Nation.
The applicants are now challenging the
decisions of the Appeals Committee on a number of grounds.
III. Parties’ submissions
[14]
The
parties’ respective submissions may be summarized as follows:
A. Applicants
[15]
According
to the applicants, courts have held that Indian bands as defined under the Act
are recognized as federal Boards, tribunals or commissions under section 2
of the Federal Courts Act, R.S.C. 1985, c. F-7. As such, the
applicants affirm that the Squamish Nation’s decision is subject to the
application of the Charter. Furthermore, under federal law, Indian governments
are delegated creatures exercising only those powers given to them by the
Minister of Indian and Northern Affairs. This is the meaning of “band” under
the Act.
[16]
The
applicants affirm that membership to bands is usually controlled by the
Registrar of Indian and Northern Affairs under section 9 of the Act. Bands
who wish to control their membership can do so by following the process set out
under section 10 of the Act. This is what the Squamish Nation did before
it enacted its Squamish Nation Membership Code. Thus, the Squamish Nation was
delegated the power to control its membership by following the process set out
under section 10 of the Act.
[17]
The
applicants affirm that children who have been adopted are eligible for
registration in bands that do not control its own membership. Under the Act, a
“child” is defined as including both biological and adopted children. In
determining whether to confer Indian status and membership in a band to an
applicant, the Registrar who has control over band membership under section 9
of the Act makes no distinction between biological or adopted children.
[18]
According
to the applicants, the Squamish Nation does, however, make a distinction
between adopted and biological children. Paragraph 7(b)(i) of the Membership
Code states that a person is entitled to be added to the membership list as a
“lineal member” if he or she has at least one biological parent who is, or if
no longer living would be, if alive, entered on or entitled to be entered on
the list as a descendant member. As adopted children of a Squamish Nation
member, the applicants are of the view that paragraph 7(b)(i) should allow them
to have the same benefit under the law as those born to Squamish Nation
members.
[19]
Thus,
the applicants state that section 7 of the Membership Code is ultra vires
the powers that have been delegated to the Squamish Nation under section 10
of the Act, on the basis that it discriminates against them on an analogous
ground under section 15 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 (the Charter), namely, their status within the
family as adopted children of a Squamish Nation member. As adopted children,
the differential treatment the applicants have suffered under section 7 of
the Membership Code reflects the stereotypical application of rules that
promote the view that they are less capable or worthy of recognition or value
as human beings equally deserving of concern, respect and consideration.
[20]
The
applicants also submit that section 9 of the Membership Code discriminates
against them on an analogous ground under section 15 of the Charter by
virtue of the fact that they have obtained Indian status through adoption.
[21]
The
applicants further submit that the power to control band membership is not an
existing aboriginal right under section 35 of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11. Furthermore, the applicants do not believe that the Squamish Nation
membership Code is protected under section 25 of the Charter. Section 25
of the Charter is not intended to shield powers which, under the Act, have been
delegated to a band.
B. Respondent
[22]
The
respondent affirms that the applicants do not qualify for membership to the
Squamish Nation because they do not possess the necessary blood lineage as
required by the Membership Code. The impugned decisions rendered by the Appeals
Committee are well founded in fact and law, and accordingly, should not be
disturbed.
[23]
The
respondent submits that the applicants’ membership application was considered
under provisions dealing with both lineal and acquired membership. However,
neither the Membership Committee nor the Appeals Committee was of the view that
membership could be granted to the applicants under either category.
[24]
The
respondent is of the view that the Squamish Nation’s power to control its own
membership is not a delegated power under the Act, as suggested by the
applicants. Relying on News v. Wahta Mohawks, (2000) 189 F.T.R. 218 at
para. 20 (F.C.T.D.), the respondent affirms that section 10 of the
Act allowed First Nations to “regain” control over their membership. Once
control over membership is regained by a band, the Minister has no jurisdiction
to either resume control of the band’s membership or prevent a band from
assuming control over its membership. Therefore, section 10 of the Act
does not delegate the power to control membership in a band. Rather, it
restores that power to the band.
[25]
The
respondent says that courts have recognized that Indian bands are not mere
creatures of status. They are pre-existing entities with a legal status of
their own and having their own customs, laws, privileges, rights and
obligations. As such, the Squamish Tribe would have had laws and customs
concerning its own membership.
[26]
According
to the respondent, subsection 15(1) of the Charter does not apply to the
decision of the Appeals Committee, by virtue of section 25 of the Charter and
subsection 35(1) of the Constitution Act, 1982. Following the
three-stage test set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, [1996]
137 D.L.R. (4th) 289, for proving that a particular activity is an
aboriginal right, the respondent affirms that the Squamish Nation’s right to
define and control qualification for membership to their community is an
aboriginal right pre-dating European contact that is protected by section 35
of the Constitution Act, 1982.
[27]
According
to the respondent, not only does section 25 of the Charter shield aboriginal
rights – rights that are communal in nature – from individual rights
as set out in the Charter, but it also shields “other rights or freedoms that
pertain to the aboriginal peoples of Canada” as stated under the provision. Although
the courts have not determined what constitutes “other rights”, the respondent contends
that one such right is the Squamish Nation’s right to control its membership
pursuant to section 10 of the Act. This right is a statutory right that may
qualify for protection under section 25: see Corbière v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 52. Furthermore,
it is not a temporary or revocable right. Once a First Nation assumes control
over its own membership under section 10 of the Act, there is no provision
that allows the Minister to reclaim control over the Band’s membership: see R.
v. Kapp (2004), 31 B.C.L.R. (4th) 258, 2004 BCSC 958 at paras. 35-37, aff’d (2006) 69
W.C.B. (2d) 667, 2006 BCCA 277, leave to appeal to S.C.C. requested. (The
applicants submitted the British Columbia Supreme Court decision in support of
their arguments. The Court notes that this decision was affirmed by the British
Columbia Court of Appeal in June of this year after the present application was
heard. Two of the five judges considered the issue of whether the aboriginal commercial
fishing rights granted under the licence in question constituted “other rights”.
One found that section 25 had no application to the licence, while the other found
that the benefit of the licences was protected by section 25 as an “other right
or freedom”. Two other judges considered it unnecessary to consider section 25,
while the fifth judge refrained from expressing any views on the subject).
[28]
The
respondent submits that it is critical to be sensitive to the aboriginal
perspective in construing section 25 of the Charter. The European/North
American concepts of individual rights may be at odds with collective rights
and identity advanced by the Squamish. However, the communal nature of
aboriginal interests should not be undervalued in the face of liberal notions
of individual rights: see Campbell v. British Columbia (A.G.) (2000),
189 D.L.R. (4th) 333, 2000 BCSC 1123 at para. 155.
[29]
The
applicants base their claim on their status as adopted persons. However, the
Squamish Nation is of the opinion that the applicants have not properly
characterized their status for the purpose of subsection 15 (1) f the Charter.
Since both Jaime and Jordana were adopted as adults, they should characterize
themselves as persons adopted as adults.
[30]
Finally,
the respondent states that if the Court finds that section 7 of the Code
is discriminatory pursuant to subsection 15(1) of the Charter, it is nonetheless
saved by section 1 of the Charter. However, if the Court finds that
section 1 cannot be saved by section 1 of the Charter, the respondent
submits that the remedy should focus on section 9 of the Membership Code
rather than section 7. If a remedy were to focus on section 7 of the
Code, the applicants would be granted membership to the Squamish Nation automatically,
thus defeating the purpose of a Membership Code. A remedy based on section 9 of
the Membership Code would have less drastic effects.
IV. The
equality rights issue
[31]
The
applicants say that they are discriminated against by section 7 of the Membership
Code, on the basis that they are the adopted children of a Squamish parent, rather
than her biological children. They rely on subsection 15(1) of the Charter
which states:
|
Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
|
La
loi ne fait acception de personne et s'applique également à tous, et tous ont
droit à la même protection et au même bénéfice de la loi, indépendamment de
toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou
les déficiences mentales ou physiques.
|
[32]
I
am ready to assume for the purposes of this case that the applicants are right
in asserting that the impugned provisions of the Membership Code must conform to
the equality rights provision of the Charter. Indeed, for the reasons expressed
below, I accept the applicants’ proposition that the impugned provisions of the
Membership Code are discriminatory and that the applicants’ rights under subsection 15(1)
of the Charter are infringed. However, I accept respondent’s alternative
argument that the impugned provisions of the Membership Code are saved under
section 1 of the Charter. Therefore, I will examine the issues of
discrimination and justification separately.
A. Discrimination
under subsection 15(1) of the Charter
[33]
The
Supreme Court set out the current approach in analyzing whether a provision
violates subsection 15(1) of the Charter in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 at
para. 88. The three-step approach is as follows:
|
(1)
|
|
Does the impugned law (a) draw a formal distinction between the claimant
and others on the basis of one or more personal characteristics or (b) fail
to take into account the claimant's already disadvantaged position within
Canadian society resulting in substantively differential treatment between
the claimant and others on the basis of one or more personal characteristics?
|
|
|
(2)
|
|
Is the claimant subject to differential treatment based on one or more
enumerated and analogous grounds?
|
|
|
(3)
|
|
Does the differential treatment discriminate, by imposing a burden upon or
withholding a benefit from the claimant in a manner which reflects the
stereotypical application of presumed group or personal characteristics, or
which otherwise has the effect of perpetuating or promoting the view that the
individual is less capable or worthy of recognition or value as a human being
or as a member of Canadian society, equally deserving of concern, respect,
and consideration?
|
|
[34]
Where
applicants are asking for equal treatment, they do so by reference to other
people with whom they can legitimately invite comparison. As such, any
consideration of an equality right must commence by establishing an appropriate
comparator group. Justice Binnie stated in Hodge v. Canada (Minister of Human Resources
Development),
[2004] 3 S.C.R. 357, 2004 SCC 65 at para. 23, that:
The
appropriate comparator group is the one which mirrors
the characteristics of the claimant (or claimant group) relevant to
the benefit or advantage sought except that the statutory definition includes a
personal characteristic that is offensive to the Charter or
omits a personal characteristic in a way that is offensive to the Charter.
An example of the former is the requirement that spouses be of the opposite
sex; M. v. H., supra. An example of the latter is the omission of sexual
orientation from the Alberta Individual's Rights Protection Act;
Vriend v. Alberta, [1998] 1 S.C.R. 493.
[35]
It
is worth pointing out that while it is up to the applicants to make an initial
choice of the person, group or groups with whom he or she wishes to be compared,
the Court is not required to adopt the comparator group chosen by the
applicants. The correctness of that choice is a matter of law for the Court to
determine: see Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703,
2000 SCC 28, at paras. 47, 52 and 64; see also Hodge, above, at
para. 21.
[36]
The
applicants submit that the appropriate comparator group is that of children who
have one biological Squamish parent. I agree with the applicants.
1a). Does the impugned law draw a
formal distinction between the claimant and others on the basis of one or more
personal characteristics?
[37]
The
purpose of the Squamish Membership Code is to establish three different categories
of membership: (a) descendant members, (b) lineal members and (c) acquired
members. These three categories of Squamish membership are based on one’s blood
connection to the Squamish nation.
[38]
Descendant
members (sections 5 and 6 of the Membership Code) are classified as having 100%
Squamish blood. As a result, a descendant member has the full ability to pass
entitlement to membership to his or her biological children. The adoptive
mother of the applicants benefits from this specific status in the Squamish
Nation.
[39]
Squamish
lineal members (section 7 of the Membership Code) are classified as having
50% Squamish blood. These members would have only limited rights to pass on
membership to their children. The biological child of one descendant member and
another person is entitled to lineal membership as that person would meet the
50% Squamish blood prerequisite. For the same reason, the biological child of
two lineal members would also be entitled to benefit from this system.
[40]
Acquired
membership (sections 8 to 11 of the Membership Code) may be granted to the
adopted Indian children of two Squamish members under the age of eighteen
years. These children are not automatically entitled to membership, as the
Membership Committee has some discretion in granting the status. Nonetheless,
adopted children who may benefit from acquired membership have no ability to
pass on their status to their own children.
[41]
In
the present case, we see that section 7(b)(i) of the Membership Code entitles a
person to have his or her name entered on the membership list as lineal members
if he or she has one biological parent who is, or if no longer living would be,
if alive, entered or entitled to be entered on the membership list as a descendant
member. The section clearly draws a formal distinction between biological and
adopted children of Squamish parents. This finding is supported by the
affidavit of Juliette Marlene Baker, an elected councilor of the Squamish
Nation, where she stated at paras. 33-36:
At
the consultation meetings leading to adoption of both the 1987 Code and the
2000 Code, the question of adopted people received a great deal of attention.
The membership was very concerned not to extend membership rights to adopted
people. There were two main reasons for this concern.
First, it is against the well-established
tradition of the Squamish people to confer membership rights on persons who do
not have Squamish blood.
Second, the committee and membership was
concerned that the system established under the membership code could be open
to abuse if adopted persons of one Squamish parent were given membership
rights. This would create a loophole whereby persons who do not meet the
requirements for lineal or descendant membership could be brought in as members
through adoption.
For these reasons the Squamish Nation
membership was of the view that adopted children of only one Squamish parent
should not be entitled to membership.
[42]
Ms.
Baker’s affidavit clearly demonstrates the existence of a formal distinction
based on personal characteristics shared by the applicants, who are the adopted
children of one Squamish parent. The Squamish Membership Code does not grant
lineal membership to adopted children who have only one Squamish parent, but
allows children who have one biological Squamish parent to obtain this benefit.
1b). Does the impugned law fail
to take into account the claimant's already disadvantaged position within
Canadian society resulting in substantively differential treatment between the
claimant and others on the basis of one or more personal characteristics?
[43]
According
to the test set out in Law, above, three inquiries should be made by
this Court. A positive finding under each step is required before the Court
proceeds to the next step. The first step requires that a positive finding be
made under either sub-question 1(a) or 1(b). Once a positive finding is made on
either ground, the Court can proceed to the second inquiry. In light of my
positive finding on the first ground, I see no need to examine ground 1(b).
2. Are the applicants subject
to differential treatment based on one or more enumerated and analogous grounds?
[44]
The
applicants argue that the contested provisions of the Membership Code make a
formal distinction on an analogous ground, namely, their status within a family
as adopted rather than biological children of a Squamish Band member.
[45]
The
criteria for analogous grounds were described by Justices McLachlin and
Bastarache in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203,
173 D.L.R. (4th) 1 at para. 13:
What
then are the criteria by which we identify a ground of distinction as
analogous? The obvious answer is that we look for grounds of distinction that
are analogous or like the grounds enumerated in s. 15 - race, national or
ethnic origin, colour, religion, sex, age, or mental or physical disability. It
seems to us that what these grounds have in common is the fact that they often
serve as the basis for stereotypical decisions made not on the basis of merit
but on the basis of a personal characteristic that is immutable or changeable
only at unacceptable cost to personal identity. This suggests that the thrust
of identification of analogous grounds at the second stage of the Law
analysis is to reveal grounds based on characteristics that we cannot change or
that the government has no legitimate interest in expecting us to change to
receive equal treatment under the law. To put it another way, s. 15 targets the
denial of equal treatment on grounds that are actually immutable, like race, or
constructively immutable, like religion.
[46]
An
infant cannot change his status as an adopted child. This is an immutable
characteristic. In the case of children who have been adopted as adults, their
status is constructively immutable. The status of the applicants as adopted
children qualifies as an analogous ground. The respondent’s lineal membership
policy clearly results in a differential treatment on the basis of this
analogous ground.
3. Does the differential
treatment discriminate, by imposing a burden upon or withholding a benefit from
the claimant in a manner which reflects the stereotypical application of
presumed group or personal characteristics, or which otherwise has the effect
of perpetuating or promoting the view that the individual is less capable or
worthy of recognition or value as a human being or as a member of Canadian
society, equally deserving of concern, respect, and consideration?
[47]
To
answer this question this Court has to decide whether there is differential treatment
that constitutes discrimination. It is not every distinction or
differentiation in treatment at law that will transgress the equality
guarantees of section 15 of the Charter. The applicants’ dignity needs to
be affected by the differential treatment imposed by the Membership Code. The
Court must therefore determine whether the provisions of the Membership Code in
question impose a burden upon the applicants or withhold a benefit from them in
a manner which either reflects the stereotypical application of presumed group
or personal characteristics, or which otherwise has the effect of perpetuating
or promoting the view that they are less capable or worthy of recognition or
value as human beings or as members of Canadian society, equally deserving of
concern, respect, and consideration.
[48]
An
infringement of subsection 15(1) exists if it can be demonstrated that, from
the perspective of a reasonable person, in circumstances similar to those of
the applicants, who takes into account the contextual factors relevant to the
claim, the legislative imposition of differential treatment has the effect of
demeaning the applicants’ dignity. Using contextual factors, the applicants
have to demonstrate the existence – or at least support an inference – that subsection
15(1) has been infringed by the Membership Code. There are a variety of such
factors and the list is not closed. Some important contextual factors
influencing the determination of whether section 15 has been infringed are,
among others: 1) pre-existing disadvantage, stereotyping, prejudice, or
vulnerability; 2) the correspondence between the grounds claimed and the
actual need, capacity or circumstances of the claimant and others; (3) the
existence of ameliorative purposes or effects of the impugned law upon a more
disadvantaged person or group and (4) the nature and scope of the interest
affected.
[49]
In Law,
above, at para. 63, the Supreme Court underscored that the most compelling
factor favouring a conclusion that differential treatment imposed by legislation
is truly discriminatory will be, where it exists, pre-existing disadvantage,
vulnerability, stereotyping, or prejudice experienced by the individual or
group. It affirmed that probably the most prevalent reason that a given
legislative provision may be found to infringe s. 15(1) is that it reflects and
reinforces existing inaccurate understandings of the merits, capabilities and
worth of a particular person or group, thereby further stigmatizing those
persons or members of those groups or resulting otherwise in their unfair
treatment (see Law, above, at para. 64).
[50]
It
is necessary to analyze in a purposive manner the ground on which the subsection
15(1) claim is based when determining whether discrimination has been
established. According to Law, above, at para. 70:
As
a general matter, as stated by McIntyre J. in Andrews, supra, and by Sopinka J.
in Eaton, supra, and referred to above, legislation which takes into account
the actual needs, capacity, or circumstances of the claimant and others with similar
traits in a manner that respects their value as human beings and members of
Canadian society will be less likely to have a negative effect on human
dignity. This is not to say that the mere fact of impugned
legislation's having to some degree taken into account the actual situation of
persons like the claimant will be sufficient to defeat a s. 15(1) claim. The
focus must always remain upon the central question of whether, viewed from the
perspective of the claimant, the differential treatment imposed by the
legislation has the effect of violating human dignity. The fact that
the impugned legislation may achieve a valid social purpose for one group of
individuals cannot function to deny an equality claim where the effects of the
legislation upon another person or group conflict with the purpose of the s.
15(1) guarantee. In line with the reasons of McIntyre J. and Sopinka
J., I mean simply to state that it will be easier to establish discrimination
to the extent that impugned legislation fails to take into account a claimant's
actual situation, and more difficult to establish discrimination to the extent
that legislation properly accommodates the claimant's needs, capacities, and
circumstances.
[51]
Another
factor will be the ameliorative purpose or effects of impugned legislation upon
a more disadvantaged person or group in society. This factor is only relevant
when dealing with legislation which has an ameliorative purpose. This is an
argument which has been brought up by the respondent. According to the Squamish
Nation, the ameliorative purpose and effect of the Membership Code is to
preserve Squamish culture and identity. The respondent affirms that this is a
determinative factor in the case.
[52]
A
further contextual factor that may be relevant in appropriate cases in
determining whether the claimant's dignity has been violated is the nature and
scope of the interest affected by the legislation. The Supreme Court stated, in
Egan v. Canada, [1995], 2 S.C.R. 513 at para. 63: “If all other
things are equal, the more severe and localized the economic consequences on
the affected group, the more likely that the distinction responsible for these
consequences is discriminatory within the meaning of section 15 of the
Charter”.
[53]
The
question may be put in the following terms: do the impugned Membership Code
provisions, in purpose or effect, violate essential human dignity and freedom
through the imposition of disadvantage, stereotyping, social prejudice or
vulnerability? The answer lies in part in the aim and effects of the Membership
Code in providing a different membership status to members of the Squamish
Nation based on bloodline and social reality.
[54]
In
the present case, the applicants submit that they are already disadvantaged because
of their status as Indian women. The applicants also assert that section 7
of the Membership Code is demeaning to them because it is based on a
stereotypical view of adopted children that makes such children unable to adapt
and adopt the aboriginal customs and traditions of their Squamish parent. The
theory behind the rejection of adopted children held in the Squamish Nation
under its membership rules is founded in part on the stereotypes of adopted
children who are not expected to share the values, culture and tradition of the
Nation. The stereotype held by the Squamish Band, as reflected in its
membership rules, is negative towards adopted children having only one Squamish
parent.
[55]
Here,
the fact that lineal membership is not made available to adopted children
reflects the fact that these children are not considered having the proper
bloodline to benefit from this specific status. Here, the applicants are
clearly denied lineal and acquired membership in the Squamish Nation based on
their lack of proper ties to the community. These ties to the Squamish
community are based on blood quantum. In my opinion, section 7(b)(i)
discriminates against the applicants in legislation based on blood quantum insofar
as concluding that adopted children cannot benefit from the same status as
biological children.
[56]
This
being said, the respondent has stated on numerous occasions that its membership
code was not discriminatory against the applicants because it recognized the
possibility of granting membership to adopted children. It appears to me that
the respondent’s proposition in this regard is not an element this Court should
examine in order to determine whether or not the impugned provisions of the
membership code infringe subsection 15(1) of the Charter. The possibility
of adopted children acquiring membership in the Squamish Nation on certain
conditions is a matter that is better addressed at the level of justification
under section 1 of the Charter.
[57]
While
I recognize that the Squamish Nation has the right to implement its own
membership code by virtue of section 10 of the Act, I am of the opinion
that its provisions discriminate between adopted and biological children (as
well as between adopted children themselves). The fact that children are
adopted by one or two Squamish members is an immutable characteristic which
cannot be changed by the applicants. The view that adopted children who have
only one Squamish parent have a tie to the community that is too remote is
based on a stereotypical construction resulting in discrimination.
[58]
Accordingly,
the applicants have demonstrated that from the perspective of a reasonable
person, in circumstances similar to those of the applicants who take into
account the contextual factors relevant to the claim, the differential
treatment that affects them under paragraph 7(b)(i) of the Membership Code
has the effect of demeaning their dignity.
B. Justification
under section 1 of the Charter
[59]
The
protection offered by the Charter to the rights it enshrines is qualified by section 1
of the Charter which reads:
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
[60]
The
well-known test for section 1 was set out by the Supreme Court of Canada
in R. v. Oakes, [1986] 1 S.C.R. 103 at 138-140, 26 D.L.R. (4th)
200. It requires the Court to determine:
(a)
whether
the measure in question has a pressing and substantial objective; and
(b)
whether
the measure adopted to meet the objective is proportional to the degree to
which the Charter right is infringed, having regard to whether:
(i)
the
measures adopted to achieve the objective are rationally connected to the
objective itself;
(ii)
the
means adopted infringe the Charter right as little as reasonably possible; and
(iii)
there
is proportionality between the effect of the measure and its objective so that
the attainment of the legislative goal is not outweighed by the abridgement of
the right.
1.
Pressing
and substantial objective
[61]
The
objective of section 7 of the Membership Code is to preserve the collective
Squamish culture and identity, particularly in the face of an overwhelming
non-native and non-Squamish population, in a manner consistent with Squamish
heritage, culture and values. One means of doing so is the use of the
traditional practice of requiring Squamish members to have a bloodline
connection to the Squamish (Affidavit of Juliette Marlene Baker,
paras. 13-18; Membership Code, preamble).
[62]
The
respondent submits that this objective meets the pressing and substantial
objective standard. I agree with the respondent. In passing, I note that the
applicants take the position that preservation of Squamish identity could not
be the objective of the Membership Code because there are persons without
Squamish blood who are members of the Nation. However, this argument overlooks subsection 10(4)
of the Act, which required the Squamish to adopt a Membership Code that
recognizes the membership of all existing members, regardless of whether those
persons would qualify for membership under the new Code.
2.
Proportionality
[63]
The
second stage of the Oakes test for section 1 justification is the
proportionality test, which contains the three elements set out below. The
proportionality test requires the court to balance the rights of the individual
against the interests of the larger society.
(a) Rational
Connection
[64]
The
first element of the proportionality test requires that the Court examine whether
the measures adopted to achieve the legislative objective are
rationally-connected to legislative objective itself. The respondent submits
that this stage of the test is also met. Restricting membership to persons who
have a bloodline connection to the Squamish Nation is rational way of preserving
and protecting the unique Squamish culture and identity.
[65]
I
agree with the respondent.
[66]
For
instance, I note that self-identification, ancestral connection, and community
acceptance were considered by the Supreme Court of Canada in R. v. Powley,
[2003] 2 S.C.R. 207, 2003 SCC 43, as indicia of Métis identity for the purpose
of claiming Métis rights under section 35 of the Constitution Act, 1982.
In particular, it was decided that requiring an ancestral connection to a
historic Métis community ensured that beneficiaries of section 35 rights
had a real link to the historic community whose practices grounded the right
being claimed. In this regard, the Court stated at paragraph 32: “We would
not require a minimum “blood quantum”, but we would require some proof that the
claimant’s ancestors belonged to the historic Métis community by birth,
adoption, or other means.”
[67]
At
paragraph 34, the Supreme Court further notes in Powley:
It is important to remember that, no
matter how a contemporary community defines membership, only those members with
a demonstrable ancestral connection to the historic community can claim a s. 35
right. Verifying membership is crucial, since individuals are only entitled to
exercise Métis aboriginal rights by virtue of their ancestral connection to and
current membership in a Métis community.
[68]
In
the case at bar, the respondent has demonstrated that the bloodline connection
requirement is not only a rational way of protecting Squamish culture and
identity amongst its members, but according to the uncontradicted evidence
submitted on behalf of the respondent, it is part of Squamish heritage and
culture and constitutes a practice followed by the Squamish since before
contact with the Europeans.
(b) Minimal
Impairment
[69]
The
second element of the proportionality test is to determine whether the impugned
law (here the membership rules of the Squamish Nation) infringes the Charter
right as little as reasonably possible in order to achieve the desired
objective.
[70]
In
Libman v. Quebec (Attorney General), [1997] 3
S.C.R. 569, 151 D.L.R. (4th) 385 at paras. 58-59), the Supreme
Court of Canada said that it is not necessary that the one measure that least
intrudes on the Charter right be selected. All that is required is that the law
fall “within a range of reasonable alternatives”. The Court went on to say, at
para. 59:
This Court has already pointed out on a
number of occasions that the social, economic and political spheres, where the
legislature must reconcile competing interests in choosing one policy among
several that might be acceptable, the courts must accord great deference to the
legislature’s choice because it is in the best position to make such a choice.
[71]
Notwithstanding
the Squamish custom, I note that the respondent has addressed the potential
rights of children who lack that bloodline requirement, in section 9 of
the Membership Code. Section 9 provides for discretionary admission into
Squamish membership for adopted children, both of whose adoptive parents are
Squamish. In that case, the Membership Committee decides, on application, whether
the child should be admitted to Squamish membership (Affidavit of Juliette
Marlene Baker, para. 38).
[72]
This
was described as a “compromise” arrangement to make provision for adopted
children. The Nation felt that to go further and include a provision for the
adopted child of only one Squamish parent would unduly stretch Squamish laws
and traditions and unreasonably open Squamish membership to non-Squamish people
(Affidavit of Juliette Marlene Baker, para. 40).
[73]
Considerable
deference should be accorded to the Squamish in making this policy decision,
particularly since it concerns questions of citizenship, Band custom and
lineage (News v. Wahta Mohawks, above, at para. 20; Libman v. Quebec (Attorney General), above, at
para. 59).
[74]
In
my opinion, in the case at bar, the “compromise” arrangement provided for in
the Membership Code minimally impairs any rights that may exist for
non-Squamish adoptees, while still achieving the objective of protecting Squamish
culture and identity through traditional means.
[75]
I
am supported in my conclusion by the fact that in this case, the applicants’
biological mother, Ms. Sharon McIvor, is a member of the Lower Nicola
Indian Band and that on June 6, 2002, the applicants became members of the
Lower Nicola Indian Band. Ms. McIvor applied with Ms. Nahanee, who is
a descendant member of the Squamish Indian Band, to legally adopt Jaime and
Jordana as their children. In this context, the requirement that both adoptive
parents be members of the Squamish Indian Band does not appear unreasonable, as
it minimally impairs the rights of the applicants, whose Indian “citizenship”
is not compromised, as it is recognized by the natural affiliation and
appurtenance that they already have with the Lower Nicola Indian Band on the
basis of their ancestry.
(c) Proportionate
effect
[76]
The
third element of the proportionality test requires that the Court look at the
proportionality between the effects of the impugned measure and its objective.
Based on the evidence on record and the submissions made by the respondent, I
am satisfied that this third stage of the test is met.
[77]
Through
section 9, the Squamish have sought to balance the potential rights of
persons with no Squamish blood against the Squamish tradition and the need to
preserve the unique Squamish culture and identity. A person who benefits from
this status would be granted the right to live on reserve land and be able to
inherit. However, the individual would have no ability to pass on membership to his or
her own children.
[78]
The
effect of this measure is to make provision for persons adopted by Squamish
parents without unduly stretching the Squamish traditions.
[79]
It
is true that paragraph 9(a) of the Membership Code does not recognize that
all adopted children are entitled to acquire membership in the Squamish Nation.
The only adopted children who can acquire such membership are children adopted
before the age of eighteen by two Squamish parents. Even if an adopted child
actually meets the requirement for acquired membership, his status is not
acquired automatically. The Membership Committee retains the ability to review
the application and to ensure that there is “sufficient cultural connection to
extend to the child” (Affidavit of Juliette Marlene Baker at para. 39).
[80]
The
rationale for such requirements has been satisfactorily explained by the
respondent and appears to be reasonable in the circumstances. According to the
Affidavit of Juliette Marlene Baker, this was the extent to which the
Membership Committee was willing to compromise as far as adopted children were
concerned. It was of the opinion that this provision would strike a balance
between recognizing the social reality that is adoption, while maintaining
Squamish culture and identity. With respect to the adopted child of one
Squamish person, it was felt that “the cultural connection would be too remote
to overcome [Squamish] laws and traditions concerning a bloodline connection” (Affidavit
Juliette Marlene Baker at para. 40). Allowing an adopted child with only one
single Squamish parent would stretch Squamish traditions and unreasonably open
membership to non-Squamish people.
[81]
Furthermore,
it was decided that an age limit should be imposed to adopted children who
wished to obtain acquired membership. The Squamish Nation decided that only
children under the age of eighteen were to be eligible to apply for membership.
The Membership Committee was of the view that in order to have a sufficient
cultural tie to the Squamish to overcome the lack of a bloodline connection,
the child should not only have to be adopted by two Squamish members but should
also be raised in the Squamish community.
[82]
I do
not believe the Court should second guess the Committee, considering that the
provisions of the Membership Code were duly adopted after being discussed and agreed
upon by the members of the Squamish Nation.
[83]
Moreover,
in finding here that the impugned provisions are justified under
section 1, I do not discard the possibility that in another case, based on
a differently constituted evidentiary record, another judge may have come to a
different conclusion. This only shows that judicial review applications are
perhaps not the best vehicle for resolving complex constitutional issues
involving alleged discriminatory actions involving members of First Nations.
V. Aboriginal rights issues
[84]
I
note that “aboriginal rights” issues under subsection 35(1) of the Constitution
Act, 1982, require complete evidentiary records that are consistent with an
action for declaration of aboriginal rights. The Court makes no findings here
on the validity of the provisions of the Indian Act dealing with band
membership and whether they are inconsistent with section 35 of the Constitution
Act, 1982. The Court also makes no general finding on the extent to which
the Aboriginal community can control band membership. These complex issues were
examined at length in Sawridge Band v. Canada (T.D.), 1996 1 F.C.
3 (F.C.T.D.), which was later reversed by the Federal Court of Appeal, [1997] 3
C.F. 580, on the grounds that there was a reasonable apprehension of bias on
the part of the trial judge. These matters remain to be determined at the new
trial, now before the Court. I therefore make no comment on these issues.
[85]
That
being said, in view of the conclusion I have reached above, it is not necessary
that I decide in this case whether the respondent’s right to control membership
is an “aboriginal right” within the meaning of subsection 35(1) of the Constitution
Act, 1982, or alternatively, an “other right” as contemplated by
section 25 of the Charter, that cannot be abrogated or derogated from by subsection 15(1)
of the Charter.
VI. Conclusion
[86]
For
the reasons stated above, I conclude that the present judicial review application
should be dismissed with costs payable to the respondent.
ORDER
THIS COURT
ORDERS that the application for judicial review made by the applicants
be dismissed with costs payable to the respondent.
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