Date: 20070103
Docket: T-618-05
Citation: 2007 FC 1
BETWEEN:
JAMIE GALLANT, STEPHANIE
STANGER
and SHELLEY LEWIS
Applicants
and
THE ATTORNEY GENERAL OF CANADA and
THE MI’KMAQ
CONFEDERACY OF PRINCE EDWARD ISLAND
Respondents
REASONS FOR
JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision rendered on or about
April 1, 2005 by Human Resources and Skills Development Canada (HRSDC) to
enter into a single Aboriginal Human Resources Development Agreement (the
“Agreement”) on Prince Edward Island with the Mi’kmaq Confederacy of Prince
Edward Island (the “Confederacy”).
I. Facts
[2]
On
April 1, 1999, HRSDC announced a program to increase employment opportunities
to Aboriginal people. This program was called Aboriginal Human Resources Development
Strategy (the “Strategy”). Phase I of the Strategy ran from April 1, 1999 to
March 31, 2005. As part of the Strategy, HRSDC entered into Aboriginal Human
Resources Development Agreements (“AHRDAs”) with Aboriginal organizations
across Canada.
[3]
Three
such agreements were entered into with Aboriginal organizations on Prince
Edward Island (P.E.I.) during Phase I. The organizations were the Abegweit
First Nation, the Lennox Island First Nation, and the Native Council of P.E.I.
(the “Native Council”). The Abegweit First Nation and the Lennox Island First
Nation are the only two Indian bands on P.E.I. Both nations are Mi’kmaq. The
Native Council is a non-profit organization that advocates for Aboriginal
persons living off-reserve in P.E.I.
[4]
The
applicants are all members of the Native Council and the Native Council has
provided them with assistance of various kinds and access to various government
programs. All of the applicants live off-reserve and have limited or no
relationship with the bands on P.E.I. Jamie Gallant, the Chief and President of
the Council, is a non-status Aboriginal person. Stephanie Stanger, is a status Aboriginal
person registered with an out-of-province band. Shelley Lewis is registered
with the Abegweit band on P.E.I. but lives off-reserve.
[5]
Phase
II of the Strategy commenced April 1, 2005. HRSDC decided to change the number
of AHRDAs it was willing to enter into in various regions and, in particular,
it decided to move to having only one AHRDA on P.E.I. In Phase II of the
Strategy, the only AHRDA was made with the Confederacy. The Confederacy was
incorporated in 2002 by the Lennox Island First Nation and the Abegweit First
Nation. The Confederacy was initially created to serve as a tribal council but
the Confederacy now describes itself as a multi-functioning organization
providing service to all Aboriginal people in P.E.I. Its Board of Directors
consists of the full councils of the Lennox Island band and the
Abegweit band.
II. The decision under review
[6]
The
possibility of consolidating the three AHRDAs into one for Phase II of the
Strategy was discussed as early as 2003. According to HRSDC, both the Native
Council and the Confederacy were aware of this by November 2003. The decision
to consolidate the three AHRDAs was made in January 2005.
[7]
HRSDC
did not institute a request for proposal process but rather made arrangements
to discuss the decision to consolidate with each of the AHRDA holders
separately. Anticipating the consolidation, the Confederacy decided to submit
an unsolicited proposal to HRSDC to become the single AHRDA holder on P.E.I. HRSDC
informed the Native Council of the Confederacy’s proposal in early 2005.
[8]
HRSDC
met with the Native Council on a number of occasions in early 2005. On each
occasion the Native Council expressed the view that the Confederacy could not
represent the interests of off-reserve Aboriginal people and that there should
be two AHRDAs in P.E.I: one for on-reserve Aboriginal people and one for
off-reserve Aboriginal people. The Native Council also proposed as an
alternative to two AHRDAs that the Confederacy be allowed to have a sole AHRDA
but the urban/off-reserve component of the Agreement be managed by the Native
Council in a sub-agreement.
[9]
After
considering the Native Council’s concerns, HRSDC decided to stick with the plan
to consolidate the three AHRDAs into one. HRSDC was unwilling to consider a
sub-agreement as proposed by the Native Council because of prior negative
experience HRSDC had had with them in others provinces. On February 11, 2005, HRSDC
informed the Native Council of its decision and suggested to the Native Council
that it submit its own proposal to be the sole AHRDA holder for P.E.I. The
Native Council declined to do so stating that it was not its mandate to
represent on-reserve Aboriginal people.
[10]
To
protest this decision, the members of the Native Council took a number of
actions. They wrote letters to directors in HRSDC, held a public meeting to
discuss the subject, and staged a public demonstration outside HRSDC’s offices.
This reaction from the Native Council was not a surprise to HRSDC. Department
documents dating back to 2004 indicate that HRSDC anticipated that it could be
difficult to consolidate the AHRDAs, as “bringing the two first nation
agreements and the non status group together under one agreement will be tough
to sell when these two groups are not being brought together under one
agreement, else where in the Maritimes or for that matter Canada” (material
disclosed under Rule 317 of the Federal Courts Rules, SOR/98-106 (the
Rules), pages 18 and 19 of volume 1 (of 3) of the Applicants’ Record).
[11]
In
February and March 2005, HRSDC continued to meet with the Native Council and
also arranged a meeting where the Confederacy presented its proposal to the
Native Council.
[12]
On
or about April 1, 2005, HRSDC entered an AHRDA with the Confederacy making the
Confederacy the sole AHRDA holder on P.E.I (the decision). It is this decision
which is under review in this application.
III. Issues
A. Preliminary issue
(1) Should
certain paragraphs of the affidavits of Shelly Lewis, Stephanie Stanger,
Sheila Chaisson and Jamie
Gallant be struck?
B. Main
issues
(1) Did
HRSDC’s decision to enter into a sole AHRDA with the Confederacy result in
discrimination in violation of
the applicants’ individual equality rights protected
under section 15 of the Canadian
Charter of Rights and Freedoms (the Charter)?
(2) If
it did, was the decision justifiable under section 1 of the Charter?
(3)
Did HRSDC’s
involvement in the decision breach natural justice and fail to provide
procedural fairness through its
conduct?
IV. Analysis
A. Preliminary
issue
[13]
The
Attorney General submits that portions of the affidavits of Shelley Lewis,
Stephanie Stanger, Sheila Chaisson, and Jamie Gallant are not in compliance
with Rule 81 because they are not confined to facts in the personal knowledge
of the deponent. The Attorney General submits that the following paragraphs
should be struck from the affidavits:
(1)
Affidavit
of Shelley Lewis: paragraphs 4, 8-10;
(2)
Affidavit
of Stephanie Stanger: paragraphs 7, 15-16;
(3)
Affidavit
of Sheila Maureen Chaisson: paragraphs 10-11; and
(4)
Affidavit
of Jamie Gallant: paragraphs 34, 47-49, 50-52.
[14]
Subsection
81(1) of
the Rules reads:
|
81. (1) Affidavits shall be confined to
facts within the personal knowledge of the deponent, except on motions in
which statements as to the deponent's belief, with the grounds therefore, may
be included.
|
81. (1) Les affidavits se
limitent aux faits dont le déclarant a une connaissance personnelle, sauf
s’ils sont présentés à l’appui d’une requête, auquel cas ils peuvent contenir
des déclarations fondées sur ce que le déclarant croit être les faits, avec
motifs à l’appui.
|
(1)
Shelley
Lewis’ affidavit
[15]
Paragraph
4 – Shelley Lewis alleges that she knew that persons living on reserve received
Christmas bonuses. It is clear from the cross-examination that this was not
within her personal knowledge but rather she had heard about this from other
people.
[16]
Paragraph
8 – Shelley Lewis alleges that the process of applying for AHRDA funding
through the Confederacy will be difficult and complicated. This is clearly not
within her personal knowledge and during her cross-examination she admitted
that she has never applied for funding through the Confederacy.
[17]
Paragraph
9 – Shelley Lewis opines given the mandate of the Confederacy the likely result
of the Confederacy having the sole AHRDA is that off-reserve Aboriginal persons
would be discriminated against. The Confederacy’s mandate is not within her
personal knowledge. In her cross-examination she admitted that she was told
what the Confederacy’s mandate is by Jamie Gallant.
[18]
Paragraph
10 – Shelley Lewis states
that she was only made aware of HRSDC’s decision to adopt a “single-window”
approach through the efforts of the Native Council. I see no problem with this
statement.
[19]
I will
therefore strike paragraphs 4, 8, and 9 from Shelley Lewis’ affidavit.
(2) Stephanie
Stanger’s affidavit
[20]
Paragraph
7 – Stephanie Stanger claims that she does not fit within the Confederacy’s mandate
since she is not Mi’kmaq and not from one of the two bands on P.E.I. As
previously noted, comments about the mandate of the Confederacy can be struck
on the basis that it is not within the affiant’s personal knowledge since the
affiant did not bring specific evidence to show that this information is part
of her personal knowledge.
[21]
Paragraph
15 – Stephanie Stanger claims that since the decision has been made to grant a
sole AHRDA to the Confederacy she has been contacted by several students who
receive AHRDA funding through the Council and states that they all expressed
concern about whether the Confederacy would provide equitable access to
funding. Accepting as evidence what the students said is not acceptable.
[22]
Paragraph
16 – Stephanie Stanger states that she is concerned that she will receive less
equitable access to AHDRA funding under the new system because she believes,
based on the “Important Public Notice” sent out by the Confederacy that the
Confederacy will try to secure more funding for the on-reserve Aboriginal community
leaving less for the off-reserve community. The “Important Public Notice”
stated that the “leadership of both First Nation communities feels that by
having the AHRDA housed out of the Mi’kmaq Confederacy, there will be more employment
and training opportunities created for all Lennox Island and Abegweit community
members.”
[23]
It
is clear from the cross-examination that Stephanie Stanger holds as a personal
belief that the Confederacy intends to try to secure more of the funding for
the on-reserve Aboriginal communities and that she does not express this as a
fact. The cross-examination also clears up the nature of Stanger’s concern
about the “Important Public Notice”. She doesn’t believe that the Confederacy
will represent her because she feels that the use of the term First Nation
instead of Aboriginal in the Notice reflects the fact that the Confederacy is
more focused on the interests of the First Nations persons on P.E.I. than on
Aboriginal persons.
[24]
I will
therefore strike paragraphs 7 and 15 from Stephanie Stanger’s affidavit and
leave paragraph 16, giving this evidence limited weight.
(3) Sheila Maureen
Chaisson’s affidavit
[25]
Paragraph
10 – Sheila Maureen Chaisson states that she will not apply for AHRDA funding
through the Confederacy because her past experiences with the administration of
the Lennox Island band have led her to believe that her application would not
receive due consideration. This paragraph is a statement about the affiant’s
feelings and what she will do in the future. I see no real need to strike this
paragraph. However, limited weight is given to this evidence.
[26]
Paragraph
11 – Sheila Maureen Chaisson states the only reason that the Confederacy would
pursue the exclusive right to administer the AHRDA funding would be to ensure
that government funding remains in its constituents’ community. This is clearly
opinion and will be struck.
(4) Jamie
Gallant’s affidavit
[27]
Paragraph
34 – Jamie Gallant refers
to the “Important Public Notice” distributed by the Confederacy. She states
that if the amount of AHRDA funding is the same and the Lennox Island and Abegweit community
members will receive more funding then it must mean that the off-reserve
community members will receive less funding. This is opinion and will be struck.
[28]
Paragraph
47 – Jamie Gallant states that by having only one AHRDA on P.E.I. there is a risk of
discrimination. This is also opinion and will be struck.
[29]
Paragraph
48 – Jamie Gallant states that P.E.I. is the only Atlantic province with a
single AHRDA and without an AHRDA with an off-reserve Aboriginal organization.
These facts could be within her personal knowledge as the President of an
Aboriginal organization which had an AHRDA. I do not see any need to strike
this paragraph.
[30]
Paragraph
49 – Jamie Gallant states
that she has experienced discrimination as an off-reserve non-status Aboriginal
person and claims that in her experience non-status Aboriginal persons receive
less funding than on-reserve and status Aboriginal persons since priority is
given to status Aboriginal persons living on reserve. She notes that she knows
this personally as well as from her involvement with the Native Council. Since
Gallant works as the President of an organization which represents off-reserve
and non-status Aboriginal persons it is not surprising that it would be within
her personal knowledge that non-status Aboriginal persons receive less
government support than status Aboriginal persons.
[31]
Paragraph
50 – Jamie Gallant states that she would not feel comfortable applying to the
Confederacy for AHRDA funding. I do not think it is necessary to strike this paragraph,
but this evidence is far from being determinative in this matter.
[32]
Paragraph
51 – Jamie Gallant states
that she believes that off-reserve Aboriginal people will not be comfortable
approaching an organization representing on-reserve Aboriginal people. She also
states that she is concerned that the Confederacy lacks the resolve and
resources to adequately serve off-reserve Aboriginal persons. This paragraph
should be struck as neither statement involves subjects she personally has
knowledge of.
[33]
Paragraph
52 – Jamie Gallant states that she is concerned that this is a test case to see
if the “single window” approach should be used in other provinces. HRSDC’s
policy is not within her personal knowledge.
[34]
I
will therefore strike paragraphs 34, 47, 51 and 52 and allow paragraphs 48, 49,
and 50.
B. Main issues
(1)
Discrimination
[35]
The
parties agree that the applicable law was laid out in Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 88 [Law].
A section 15 analysis consists of three inquiries:
(A) whether a law imposes differential treatment between the
claimant and others, in purpose or effect;
(B) whether
one or more enumerated or analogous grounds of discrimination are the basis for
the differential treatment; and
(C) whether the law in question has
a purpose or effect that is discriminatory within the meaning of the equality
guarantee.
[36]
The
Supreme Court of Canada emphasized in Law and Lovelace v. Ontario,
[2000] 1 S.C.R. 950 [Lovelace], that a section 15 analysis is a
comparative inquiry. Therefore, selecting the correct comparison group is a
crucial part of a section 15 analysis. In Lovelace, at paragraph 62, the
Supreme Court of Canada wrote that “locating the relevant comparison groups
requires an examination of the subject-matter of the law, program or activity
and its effects, as well as a full appreciation of the context.”
[37]
The
applicants submit that the appropriate comparator group is members of the
on-reserve Aboriginal community. The Attorney General submits that the
applicants did not state what the claimant group they are proposing is, but it
is clear to me from the applicants’ submission that the claimant group is members
of the off-reserve Aboriginal community in P.E.I. and, therefore, the
appropriate comparison is off-reserve Aboriginal persons and on-reserve Aboriginal
persons.
[38]
The
Attorney General submits that the relevant claimant group is Aboriginal persons
residing on P.E.I. who applied for, or were eligible to apply for, access to
labour marker programming through an organization that had an AHRDA prior to
April 2005. The Attorney General appears to be proposing that the
appropriate comparator group is Aboriginal persons residing on P.E.I. who
applied for, or were eligible to apply for, access to labour marker programming
under the current AHRDA.
[39]
I
cannot accept the Attorney General’s proposed groups as those groups do not
adequately reflect the nature of the discrimination claim brought forward by
the applicants which alleges that the applicants face discrimination as
Aboriginal persons living off-reserve. In Law, at paragraph 57, and in Lovelace,
at paragraph 62, the Supreme Court of Canada held that generally the claimant
chose the relevant comparator. As the applicants point out, the
comparator group they have put forward is the same as that used in Misquadis
et al. v. Attorney General of Canada , [2003] 2 F.C. 350, aff’d [2004] 2
F.C.R. 108 [Misquadis] (this case is also known as Ardoch Algonquin
First Nation v. Canada (Attorney General)), a case which has many similarities
with the present one.
[40]
Misquadis was a
judicial review of a decision by Human Resources Development Canada (HRDC) not
to enter into an AHRDA with Aboriginal organizations mandated by the
applicants’ communities to represent them. The applicants in that case claimed
that HRDC discriminated against them because of its decision to enter into
AHRDAs only with the provincial or regional affiliates the Assembly of First
Nations, the Métis National Council and the Inuit Tapirisat of Canada. My
colleague Justice Lemieux held that the section 15 equality rights of the
applicants had been violated and that the discrimination was not justified
under section 1. His finding was upheld by the Federal Court of Appeal.
[41]
The
Native Council purports to represent off-reserve Aboriginal people. In
cross-examination Jamie Gallant, the Chief and President of the Native Council
of P.E.I., admitted that one of the objectives of the Native Council is to
provide leadership and assistance to all Aboriginal populations but another
objective is to work with all levels of government to improve the social,
economic, and educational opportunities for off-reserve Aboriginal people on
P.E.I. Just because the objectives of the Native Council include empowering and
supporting the Aboriginal community in general, the fact remains that the
Native Council’s main focus is supporting and assisting the off-reserve Aboriginal
population.
[42]
Therefore
the claimant group in this case is Aboriginal persons living off-reserve in
P.E.I. and the comparator group is on-reserve Aboriginal persons in P.E.I.
(a) Whether
evidence of differential treatment
[43]
The
first inquiry in a section 15 analysis is whether the program imposes
differential treatment between the claimant and others, in purpose or effect.
[44]
The applicants
submit that there is differential treatment as between members of the
off-reserve Aboriginal community and the on-reserve Aboriginal community since
the decision gives the on-reserve population the opportunity to exercise
“community control” over the AHRDA holder through their ability to elect their
councils and chiefs who then control the AHRDA holder, the Confederacy.
[45]
By
contrast, the off-reserve community has no way to contribute to the composition
of the Board of the AHRDA holder, except those members of the off-reserve
community who have voting rights in Lennox Island band elections.
The off-reserve members of the Abegweit First Nation band cannot vote in band
elections. None of the applicants is a member of the Lennox Island band.
[46]
The
Attorney General submits that the applicants have not demonstrated that they
suffered any differential treatment vis-à-vis the comparator group on the basis
of a personal characteristic. The Attorney General points out that there is no
evidence that any of the applicants were deprived access to services under the
current AHRDA nor is there any evidence that any of the applicants have been
excluded from the design of the programming under that AHRDA.
[47]
However,
by giving the sole AHRDA to the Confederacy, an Aboriginal organization whose
Board is made up of the band councils of the two First Nations on P.E.I., I am
of the view that the applicants and other off-reserve Aboriginal persons in
P.E.I. do not enjoy the benefit of other Aboriginal persons in P.E.I. who have
some degree of control over the organization which holds the AHRDA since they
can vote for the Board. This situation is similar to that in Misquadis.
In that case, Justice Lemieux held that:
[111] The first stage of the
discrimination inquiry under section 15 of the Charter asks whether the program
makes a distinction that denies equal benefit, imposes an unequal burden or put
in other words, imposes unequal treatment between the applicants and those in
the comparator group.
[112] The benefit denied or unequal
treatment imposed claimed by the applicants is the inability under the AHRDS
for the communities they live in to do what First Nation members living in on-reserve
communities can do for their members, both on and off-reserve: decide how best
to devise and implement training programs, decide which type of program is
needed to serve Aboriginal peoples in their communities, allocate funding for
this purpose and insure service providers function appropriately in a context
of accountability.
[113] Devolving decision-making for
labour market programming to Aboriginal communities was the premise upon which
Pathways, the New Relationship and AHRDS were built and the reason is apparent
and is acknowledged by HRDC. Experience has shown that labour market
programming to serve Aboriginal peoples will not work unless decisions are made
by those on the ground.
[114] I accept the evidence of David
Hallman, David McCulloch and Robert Hawson, on behalf of HRDC, AHRDS did not
envisage every Aboriginal community would have an AHRDAs. Efficiencies and
economics of scale are relevant.
[115] I do not, however, accept their
evidence critical mass was an issue relevant to the communities the applicants
live in.
[116] AHRDS draws a distinction
between the applicants' communities and those of the comparator group. First
Nation band communities enjoy the benefits of local community control while the
applicants' communities do not. The distinction is not overcome by the urban
component of AHRDA whose purpose is different: to ensure access in urban and
rural communities to supplement the primary responsibility of AHRDS holders
(First Nation bands) to serve their members in those communities. As counsel
for Canada argued this is not a case
where the applicants allege they were denied funding when they applied for it.
The applicants have met the first stage.
[48]
The
Attorney General submits that that there is no evidence that any of the
applicants were deprived access to services under the current AHRDAs. I would
have no problem concluding based on the evidence that the decision to award the
sole AHRDA to the Confederacy has not had the effect of preventing off-reserve
Aboriginal people from accessing AHRDA funding; however, this is not the claim
that the applicants are bringing. Like the claim in Misquadis, the
discrimination claim here is that there is differential treatment between the
two groups since the decision gives the reserve-based population the
opportunity to exercise “community-control” over the AHRDA holder and the means
to ensure accountability for the execution of the Strategy through their
ability to vote for or against their councils and chiefs who control the AHRDA
holder.
[49]
The
Statistics Canada population data for 2001 indicates that there are 1345
self-identified Aboriginal persons on P.E.I. and 845 of them are registered
Indians. It also indicates that 735 people who self-identify as Aboriginal live
in Charlottetown. Even taking
into account that some urban, off-reserve Aboriginal persons do have the
ability to exercise community control over the AHRDA holder because they are
members of the Lennox Island First Nation, the statistics indicate that a
substantial portion of the Aboriginal population on P.E.I. is similarly situated
to the applicants and have no community control over the AHRDA holder.
[50]
It
is clear that officials in HRSDC were aware of this. On March 7, 2005, John
Kozij, Director of Policy, HRSDC, in an e-mail (document disclosed under Rule
317, page 66 of volume 1 (of 3) of the Applicants’ Record) to a number of his
colleagues, including William Hayward, wrote:
Given the Misquadis decision and the high
proportion of non-status people in the off-reserve setting (I count over 50% in
the off-reserve setting), the consolidation of the 3 AHRDAs into one should
provide for more than just Lennox and Abegweit representation on the new single
AHRDA board. Will the board also reflect native council representation?
[51]
An
e-mail from Gerald Gosselin, Program Manager, Aboriginal Affairs, HRSDC, to
department colleagues, offers further indication that HRSDC was aware that the
consolidation of three AHRDAs into one and arranging the sole AHRDA with an
organization that did not represent the off-reserve community would be
difficult given Misquadis. Gosselin writes that “the issue for us is Misquadis
hanging over our heads” and notes that HRSDC has a strong case to move forward
with the plan to consolidate and leave the Native Council out of the new AHRDA
since the Native Council is weak and “can not provide strong support in the
over-all AHRDS agenda.”
[52]
In
my view, the fact that the Confederacy is composed of the entire band councils
of the two First Nation bands on P.E.I. is sufficient to indicate that the
Confederacy does not adequately represent the needs and interests of
off-reserve Aboriginal people. The Confederacy submits that while it was first
established as a tribal council that it is now a multi-functioning organization
providing service to all Aboriginal people in P.E.I. Providing service to
Aboriginal persons is not exactly the same as representing off-reserve
Aboriginal persons. If the Confederacy really strove to represent all
Aboriginal persons on P.E.I. than the structure of its Board would be changed
to reflect this fact.
[53]
In
my opinion, based on the evidence before the Court, the decision created
differential treatment and, moreover, officials within HRSDC knew that this
would be the effect of the decision.
(b) Whether
enumerated or analogous ground
[54]
The
applicants submit
that the differential treatment is based on the analogous ground of
aboriginality-residence and that off-reserve residency has been accepted as an
analogous ground by the Supreme Court of Canada in Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere],
as well as by Justice Lemieux in Misquadis.
[55]
In
Corbiere, at paragraph 62, Madam Justice L’Heureux-Dubé found that Aboriginal
residency could be an analogous ground (Justice L’Heureux-Dubé wrote separate
reasons but the majority agreed with her reasoning on this issue):
Here,
several factors lead to the conclusion that recognizing off-reserve band member
status as an analogous ground would accord with the purposes of s. 15(1). From
the perspective of off-reserve band members, the choice of whether to live on-
or off-reserve, if it is available to them, is an important one to their
identity and personhood, and is therefore fundamental. It involves choosing
whether to live with other members of the band to which they belong, or apart
from them. It relates to a community and land that have particular social and
cultural significance to many or most band members. Also critical is the fact
that as discussed below during the third stage of analysis, band members living
off-reserve have generally experienced disadvantage, stereotyping, and
prejudice, and form part of a “discrete and insular minority” defined by race and
place of residence. In addition, because of the lack of opportunities and
housing on many reserves, and the fact that the Indian Act’s rules
formerly removed band membership from various categories of band members,
residence off the reserve has often been forced upon them, or constitutes a
choice made reluctantly or at high personal cost. For these reasons, the second
stage of analysis has been satisfied, and “off-reserve band member status” is
an analogous ground. It will hereafter be recognized as an analogous ground in
any future case involving this combination of traits. [. . .]
[56]
The
Attorney General submitted a different comparator group than the applicants
and, as a result, the Attorney General’s submission on this issue cannot be
used in an analysis based with off-reserve Aboriginal people as the comparator
group. The Attorney General briefly addresses Aboriginal residency as an
analogous ground in its submissions and submits that Aboriginal residency
should not be considered an analogous ground in this case because facts here
are distinguishable from Corbiere. The Attorney General submits Corbiere
dealt with off-reserve Aboriginal persons who could not vote in band elections.
[57]
However,
none of the applicants in this case can vote for either of the band councils on
P.E.I. and as a result they have no way to influence the composition of the Board
of the Confederacy. It is true that off-reserve members of the Lennox Island band
would fall into a different category because that band allows off-reserve band
members to vote; however, none of the applicants belong to the Lennox Island band and, as
previously stated, the statistics indicate that a substantial portion of the
Aboriginal population on P.E.I. is similarly situated to the applicants.
[58]
Therefore,
I see no reason to distinguish this case from Corbiere and I accept that
Aboriginal residence is an analogous ground. I also accept that the
differential treatment is based on Aboriginal residency.
(c) Whether
program is discriminatory
[59]
The
third inquiry in a section 15 analysis is whether the law or decision in
question has a purpose or effect that is discriminatory within the meaning of
the equality guarantee. This inquiry involves a contextual analysis
involving an analysis of the following four factors:
- pre-existing
disadvantage;
- the correspondence, or
lack thereof, between the ground on which the claim is based and the
actual need, capacity, or circumstance of the claimant or other;
- the ameliorative purpose
or effects of the impugned law, program or activity upon a more
disadvantaged person or group in society; and
- the nature and scope of
the interest affected by the impugned government activity.
[60]
The
applicants refer to the cases of Corbiere, Lovelace and Misquadis
for the proposition that off-reserve Aboriginal peoples are vulnerable,
disadvantaged and vulnerable to stereotyping. The Attorney General submits that
the first factor is neutral since both the comparator group and the claimant
group suffer from a pre-existing disadvantage.
[61]
In
Corbiere, the Supreme Court recognized the vulnerability of off-reserve
First Nations band members to unfair treatment on the basis of the group being
stereotyped as “less Aboriginal” than band members living off-reserve. In Lovelace,
the Supreme Court recognized that non-status First Nations persons could
similarly be vulnerable to unfair treatment. Based on these two cases, I accept
that non-status Aboriginal persons and off-reserve Aboriginal persons are
vulnerable to unfair treatment while at the same time recalling, as Justice Lemieux
did in Misquadis, at paragraph 122, that both band and non-band Aboriginal
communities suffer from historical disadvantage and that it is not necessary to
compare the two groups to see which is more disadvantaged or vulnerable.
[62]
The
second factor is whether there is a correspondence between the ground on which
the claim is based and the actual need, capacity, or circumstances of the
claimant. The applicants submit that the Strategy is a program that is supposed
to be available to all Aboriginal persons and, yet, the off-reserve members of
the Aboriginal community have no means by which to hold the Confederacy
accountable. On this second factor, the Attorney General submits that the Court
should consider the fact that the Confederacy is more representative of the Aboriginal
community on P.E.I. than the Council and has a proven capability of providing
the programming under the AHRDA.
[63]
Since
the claim is based on community control of the AHRDA holder and not based on
access to AHRDA funding, the needs of the applicants to be considered at this
stage is the need of the off-reserve community to have “community control” over
the AHRDA holder. The applicants did not submit any specific evidence to prove
that this is indeed a need of the off-reserve community, but the applicants
point to Misquadis where Justice Lemieux held, at paragraph 132:
.
. . The applicants do not have to show they are more disadvantaged than the
reserve-based First Nation members. AHRDS is a universal program whose purpose
is to provide enhanced employment opportunities for all Aboriginal peoples in
Canada and the benefits of local community control do not differ whether a
First Nation person lives on the reserve or not. [. . .]
And at paragraph 138:
They
have been excluded and unjustifiably differentially treated by HRDC from the
purpose and significant benefit of AHRDS, that which HRDC itself recognizes
without which the program will fail, local control of programming and funding
tailored to each community's different needs in the labour market.
[64]
Indeed
the Agreement signed between the Confederacy and HRSDC acknowledges that the
program is intended to support the development and implementation by Aboriginal
organizations of human resources development programs that are tailored to meet
the needs of Aboriginal peoples. Therefore, I find that there is a
correspondence between the claim of the applicants and the needs of the
claimant group.
[65]
There
is no disagreement between the parties on the third factor. Both parties agree
that the AHRDAs have an ameliorative purpose. The applicants emphasize that the
Strategy is to help all Aboriginal people in P.E.I. and is not intended to be a
program that bestows special benefits to one segment of the Aboriginal population.
[66]
The fourth factor is the nature and scope of the
interest affected by the impugned government activity. The applicants submit
that by not allowing non-reserve people to have any control over the Board of
the sole AHRDA holder this effectively amounts to “non-recognition” of them as
off-reserve Aboriginal people and the community they have off a reserve. The Attorney
General submits that there is no evidence that the fact that HRSDC did not sign
a separate AHRDA with the Native Council has affected the interests of any
individual applicant.
[67]
I agree that the applicants have not shown that
their interests with regards to accessing funding have been affected by the decision;
however, the decision has certainly affected the applicants’ ability to control
and manage the funds. In Misquadis, Justice Lemieux held that:
[141] What
HRDC failed to recognize are the applicants' urban and rural First Nation
communities, that they function as a community in which First Nation members
participate, have traditional forms of governance which tasks organizations to
carry out programs they consider necessary to address the needs of the members
of that community. HRDC does not acknowledge a Roger Misquadis, a Mona Perry, a
Peter Ogden, with others, has built an Aboriginal community in the places they
live in.
[68]
Taking
into account the four contextual factors discussed above, I find that the decision
has an effect that is discriminatory within the meaning of the equality
guarantee.
(2) Violation
justification under section 1
[69]
The
applicants submit that the Attorney General bears the burden of satisfying the Court
that the section 15 violation is saved by section 1 of the Charter. The
applicants do not provide a section 1 analysis and simply submit that
there were a number of alternatives before HRSDC which had a less
discriminatory impact on the applicants.
[70]
The
Attorney General submits the first part of the section 1 test is met, namely
that the government’s purpose is pressing and substantial enough to warrant
overriding the Charter right. The Attorney General submits that the Federal
Court in Misquadis held that the purpose of the Strategy met the
pressing and substantial test of section 1. I see no reason to disturb this
finding.
[71]
As
discussed in R. v. Sharpe, [2001] 1 S.C.R. 45, the second part of the
section 1 test requires the government to prove that the means chosen are:
1) proportionate to the
objective, in that the impugned governmental action is rationally connected to
its objective;
2) that the means do not impair
the Charter right any more than is necessary to accomplish the objective; and
3) that the benefits of the
action that limits the Charter rights outweigh its delirious effects on the
right.
[72]
The
Attorney General submits that the Strategy is rationally connected to the
purpose of assisting Aboriginal people enter the labour market.
[73]
The
government action under review is clearly rationally connected to the objective
of the Strategy since the decision to enter into an AHRDA is a direct part of
implementing the Strategy. More specifically, I accept that HRSDC’s decision to
choose to make the Confederacy the sole AHRDA is rationally connected to
Strategy’s objective of providing effective labour market programming. Based on the evidence
before the Court, the Native Council had problems meeting the requirements of
the AHRDA when they had it in Phase I of the Strategy. On the other hand, HRSDC
recognized that the Confederacy had the institutional capacity to deliver the
programming effectively and, thereby, meet the needs of the Aboriginal clients
and communities.
[74]
It
is on the second prong of the test – minimal impairment – that the decision
fails.
[75]
The
Attorney General submits that the Strategy is minimally impairing since it
still provides the Aboriginal community of P.E.I. access to government programs
thorough a regional Aboriginal organization which represents all Aboriginal
people on P.E.I. This submission does not adequately explain whether there were
other means available to HRSDC to implement the Strategy in a way that did not
violate the rights of the off-reserve Aboriginal people.
[76]
The
applicants put forward a number of alternatives to the decision. One of the
alternatives was a proposal that a sub-agreement for the off-reserve population
be arranged with the Native Council. This was dismissed by HRSDC because HRSDC
had had a negative experience with sub-agreements in another province. Another
alternative put forward by the applicants was that the Confederacy be required
to include the Native Council on their Board. Both of these options would
impair the section 15 rights of the applicants less than the decision taken by HRSDC.
Either of these options also gives the off-reserve community some local control
while at the same time not giving the Native Council complete responsibility
for an AHRDA, something HRSDC does not want to do because of concerns that the
Native Council does not have as much institutional capacity to manage an AHRDA.
[77]
In
conclusion, I find that the section 15 violation is not saved by section 1
because the means of implementing the Strategy are not minimally impairing.
(3) Procedural
fairness
[78]
The
submission of the applicants raises basically two rights relating to procedural
fairness: the right to be heard and the right to a decision.
[79]
I
must first point out that in this case, the fact that this is a decision made
by a government Department rather than by an administrative tribunal (see Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 23), as well as the fact that the decision is a policy-based decision
rather than one about an individual, suggest that the content of procedural
fairness is less than it would be in other circumstances (see Chiau v.
Canada (M.C.I.), [2000] F.C.J. No. 2043 (F.C.A.) (QL) at paragraph 43).
[80]
The
applicants submit that HRSDC should have held a public consultation before
proceeding to make the decision to make the Confederacy the sole AHRDA holder.
They also submit that HRSDC should have held a hearing for the applicants. Both
of these suggest that the applicants believe that they have not had the
opportunity to be heard.
[81]
The
evidence shows that HRSDC met with the Native Council on a number of occasions
in early 2005 to discuss the plan to consolidate the three AHRDAs, to discuss
the Confederacy’s proposal and to discuss the Native Council’s concerns about
the proposal. It is true that HRSDC did not meet with any of the applicants except
as representatives of the Native Council. Unfortunately, the applicants do not
submit any case law which supports the idea that the right to be heard requires
government Departments to consult with stakeholders before concluding
partnership agreements with community organizations. I find that there is no
duty to hold public consultation with stakeholders. Moreover, I find that the
meetings which were held with the Native Council were sufficient to allow the
applicants to be heard through the organization which they have chosen to
represent them, the Native Council.
[82]
The
second area in which the applicants allege that the duty of procedural fairness
has been breached is the duty to reasons. The applicants did not argue that
written reasons should have been given but simply that reasons should have been
disclosed for why HRSDC chose not to follow any of the alternative proposals
put forward by the Native Council. Again, the applicants did not submit any
jurisprudence to support the idea that the government is required to disclose
reasons when it chose not to follow suggestions put forward by stakeholders in
a government program. The applicants did not submit a formal proposal in the
context of a call for proposals, they simply offered alternative suggestions to
the proposal provided by the Confederacy. Given this factual context, I do not believe
that the duty of procedural fairness required HRSDC to give reasons.
V. Conclusion
[83]
For
all the above reasons, I do not believe that HRSDC breached the duty of
procedural fairness in the way it dealt with the applicants in the lead up to
the signing of the AHRDA with the Confederacy. However, I find that HRSDC has
breached the rights of the applicants under section 15 of the Charter and
the Attorney General cannot show that the violation is justified under its section
1.
VI. The remedy
[84]
In
the circumstances, the appropriate remedy, much like in Misquadis, is to
undo the AHRDA’s exclusion of the off-reserve Aboriginal community of P.E.I.,
which includes the applicants, by ordering its inclusion. HRSDC, as represented
by the respondent, the Attorney General of Canada, shall consult with the Confederacy
and with the representative organization(s) of the off-reserve Aboriginal
people of P.E.I. about how best to fashion an AHRDA on P.E.I. so as to be
inclusive of the off-reserve Aboriginal people on P.E.I.
[85]
HRSDC
shall implement, no later than twelve (12) months from the date of these
Reasons for Judgment, the Strategy on P.E.I. in a manner that eliminates the
exclusion and discrimination suffered by the off-reserve Aboriginal population
on P.E.I. This shall be done by providing community control over an AHRDA to
the off-reserve Aboriginal people of P.E.I.
[86]
The
current AHRDA between the Confederacy and HRSDC shall remain in operation while
HRSDC consults with the Confederacy and the off-reserve Aboriginal people on
P.E.I. and negotiates a new or an amended AHRDA in accordance with these
Reasons for Judgment.
[87]
For
all these reasons, the judicial review application is allowed with costs.
“Yvon
Pinard”
Ottawa, Ontario
January
3, 2007
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