Date: 20071009
Docket: T-457-05
Citation: 2007 FC 1036
Ottawa, Ontario, October 9, 2007
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
LINDA JEAN, CHIEF OF THE
MICMAC NATION OF GESPEG,
IN HER OWN NAME AND ON BEHALF OF ALL
OTHER
MEMBERS OF HER BAND, AND THE CONSEIL DE
LA
NATION MICMAC DE GESPEG
Applicants
and
MINISTER OF
INDIAN AND NORTHERN AFFAIRS CANADA
and
ATTORNEY
GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
applicants dispute the legality of the refusal by the Minister of Indian and
Northern Affairs Canada (the Minister) to grant financial assistance under the Elementary/Secondary
Education Program (the Program) to student members of the Micmac Nation of
Gespeg (the Band).
[3]
In
order to be included on the Nominal Roll, the student must be ordinarily
resident on a reserve. Under the Program, ordinarily resident on a reserve
means that the student lives at a municipal address on the reserve, is a child
in joint custody who lives on the reserve most of the time or a child who lives
on a reserve and has no other place of residence. Students continue to be
considered ordinarily resident on a reserve if they return to live on the
reserve with their parents, guardians or maintainers during the year, even if
the students live elsewhere while attending school or working at a summer job.
That being said, the use of the word “reserve” in the Program does not have the
narrow legal meaning that it has in the Indian Act, R.S.C. 1985, c. I-5.
In fact, under the Program, reserves include all land set aside by the federal
government for use and occupation by an Indian band, together with all other
Crown lands recognized by INAC as settlement lands of the Indian band with whom
the student resides.
[5]
There
is no doubt that the applicants have an interest in disputing the legality of
the ministerial refusal. In her affidavit, Ms. Linda Jean, who is the
co-applicant with the Band Council, states that there are 666 Band members: 340
live in the Gaspé region and surrounding areas and 326 in Montréal. The number
of Band students currently enrolled in elementary or secondary schools is not
specified. However, according to the affidavit of Mr. Réjean Basque, education
officer for the Band, 106 members of the Band received monies for elementary or
secondary education costs for the school year 2002-03. The evidence shows that
between 1975 and 2001, in order to assist Band families living below the
poverty line whose children were attending an elementary or secondary school,
the INAC officers agreed to grant financial assistance for the purchase of
manuals and school supplies as well as a school allowance. Despite the fact
that the Assistant Deputy Minister announced a change to the previous program
in 1982 and asked the Regional Managers to stop the payments to students not
living on a reserve or Crown lands, these payments continued for a number of
years. In 2001, the Quebec Regional Manager informed the Band Council that INAC
funding would cease following a compliance exercise to ensure that services
funded by INAC and distributed through various programs are offered only to
those who are eligible under established regulations and standards. However,
INAC continued to provide a decreasing amount of financial assistance until
2004. This application for judicial review was filed in 2005.
[6]
Currently,
the applicants no longer have any legitimate expectation of continuing to
receive INAC funds to financially assist Band children who are enrolled in an
elementary or secondary school. The applicants do not dispute that the Minister
is empowered to provide for the elementary and secondary education of students
living on reserves and to fund education services and assistance to students
through the Program. In this case, the Minister’s power to adopt the Program is
based on federal jurisdiction over Indians and lands set aside for Indians;
this power is complemented by the federal spending power (since the provinces
have jurisdiction over education). Furthermore, it is clear that under the
Program’s current guidelines, Band students are not allowed to be registered on
the Nominal Roll (article 6.1 of the Program).
[7]
The
applicants’ specific complaint against the Minister is that because of the
requirement to live on a reserve (or Crown lands) the Program does not apply to
Indian students living on the Band’s traditional territory. They argue that
this infringes subsection 15(1) of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, which is Schedule B
to the Canada Act 1982 (U.K.), 1982, c.11 (the Charter).
[8]
Relying
primarily on Corbiere v. Canada (Minister of Indian and Northern Affairs),
[1999] 2 S.C.R. 203, the applicants maintain that the conditions for
applying section 15 have been met. Here, the impugned Program favours Indian
band students who live on reserves (or Crown lands). Those who do not live on
reserves (or Crown lands) are excluded from the Program. The applicants contend
that the Program thereby draws a formal distinction based on an analogous
ground, i.e., Aboriginality-place of residence. They also submit that members
of a landless band suffer a disadvantage and are in quite a vulnerable position
in comparison with bands that have a reserve or occupy lands set aside by the
Crown.
[9]
At
this point, I note that in Corbiere, above, the Supreme Court recognized
that members of First Nations bands living off-reserve are vulnerable to unfair
treatment because a stereotype has been attached to this group that its members
are “less Aboriginal” than band members who live on reserves. Based on the
evidence in the record, it is clear that a landless band suffers real
disadvantages considering the position that the group and its members occupy in
the social, political and legal contexts of our society. For an Indian band and
its members, the absence of any land base makes them vulnerable to cultural
assimilation and impairs the ability of the members to gather together and to
preserve connections to the community and to traditional lands where parents,
grandparents, great-grandparents and Aboriginal ancestors previously lived. In
this case, the fact of being a member of a landless band, which includes Band
students for purposes of examining the legality of the Program’s impugned
provisions, is a personal characteristic. It is immutable or difficult to
change. Indeed, the Crown does not seem disposed for the moment to create a
reserve or to set aside lands for the Band even though INAC’s relationship with
the Micmacs of Gespeg can be traced back to 1880.
[10]
That
being said, the applicants maintain that the traditional territory of the Band
(even though it is currently landless) is the Gaspé region and surrounding
areas. Therefore, the applicants submit that the Minister’s refusal to grant
the benefits of the Program to Band students enrolled in elementary or
secondary schools in this region is “discriminatory” in this case because it
demeans their dignity. The applicants argue that the distinction based on
residence on a reserve has the effect of completely excluding landless bands
from accessing a basic aspect of full membership in Canadian society, i.e.,
community control over their children’s education.
[11]
I
agree with the applicants that the Program draws a formal distinction between
residents and non-residents of a reserve. On the other hand, I note that
students, band members or not, who do not live on a reserve or Crown lands are
treated the same way as non-Indian students enrolled in a provincial school. In
both cases, Indians and non-Indians do not have access to the benefits of the
Program. Although there may be valid reasons to accept the applicants’
arguments on the issue of analogous grounds, I consider it unnecessary to make
a final determination on this point given my conclusion that, even if these
grounds exist, there is no discrimination under the circumstances. My approach
is consistent with that of the Supreme Court in Lovelace v. Ontario,
[2000] 1 S.C.R. 950, which was decided after Corbiere, above.
[12]
There
are four contextual factors that provide the basis for organizing the third
stage of the discrimination analysis. They are: (i) pre-existing disadvantage,
stereotyping, prejudice, or vulnerability, (ii) the correspondence, or lack
thereof, between the ground(s) on which the claim is based and the actual need,
capacity, or circumstances of the claimant or others, (iii) the ameliorative
purpose or effects of the impugned law, program or activity upon a more
disadvantaged person or group in society, and (iv) the nature and scope of the
interest affected by the impugned government activity. After considering each
of these factors, I do not believe that using the criterion of residence on a
reserve or Crown lands is ”discriminatory” in this case, in the sense that the
purpose or effect of this ground of distinction demeans the dignity of the
individuals affected through the imposition of disadvantage, stereotyping or
political or social prejudice.
[13]
As
sympathetic as the applicants’ case may be, there is no application before this
Court today regarding the Crown’s failure to create a reserve or to set aside
lands for the benefit of the Band. Rather, the Court must examine the legality
of the Minister’s refusal to grant financial assistance under the Program to
Band students who are enrolled in elementary or secondary schools and who
reside in Gaspé and surrounding areas. It is not sufficient for a claimant
simply to assert, without more, that his or her dignity or someone else’s has
been demeaned. In this case, the individuals directly affected by the impugned
provisions of the Program are Band students who attend an elementary or
secondary school and for whom financial assistance is claimed. On this point,
the issue is not whether they have been deprived of a financial benefit—clearly
they have been—but whether this deprivation promotes the view that students who
do not live on reserves or Crown lands are less capable as human beings or as
members of Canadian society. If it is true that landless bands suffered a
historical disadvantage in comparison with bands who had land, there is,
nevertheless, no relationship between the ground of distinction used in the
Program (here, living on a reserve) on the one hand, and the actual needs,
capacities and circumstances of the students of an Indian band who do not live
on a reserve or Crown lands, on the other hand. In fact, students who are
members of a band that has a reserve or occupies Crown lands are not entitled
to the benefits of the Program if they do not live on the reserve or the Crown
lands.
[14]
On
the other hand, as the Supreme Court pointed out in Lovelace, above, at
paragraph 86, “…exclusion
from a targeted . . . program is less likely to be associated with stereotyping
or stigmatization or conveying the message that the excluded group is less
worthy of recognition and participation in the larger society.” In this case,
the Program is one of the targeted federal ameliorative programs designed to
address the unique challenges faced by First Nations members living on reserves
or Crown lands. From the evidence in the record, it is clear that the primary
objective of the Program is to reduce the education gap that affects students
who live on reserves or Crown lands by allowing them to benefit from services
and programs comparable to those available to other students in the same
province or area of residence. Moreover, considering the unique legal status of
reserves in Canada, this INAC Program currently funds the elementary and
secondary education of eligible children of non-Aboriginals who work and
ordinarily reside on a reserve. The evidence in the record also shows that the
secondary school enrolment rate is lower than the national average for First
Nations members who live on reserves. The intended effect of the Program is therefore
to reduce, if not eliminate, this education gap, and in the long term, this
will help to improve the socio-economic position of First Nation members and
their communities.
[15]
With
respect to the nature and scope of the affected interest, the evidence in the
record indicates that in the past, INAC’s financial assistance for band
students focused more specifically on defraying the costs of school supplies
and clothes, as well as school bus transportation at noon. The latter two
expenses are not eligible under the Program. I am, of course, aware of the fact
that for approximately 30 years, a number of Aboriginal families not living on
reserves or Crown lands received financial assistance from INAC. However, the
Program in its current form is not a social assistance program. Currently, band
students attend provincial elementary and secondary schools in their respective
municipality of residence where they have access to a whole range of provincial
programs and services. On the other hand, there is nothing in the evidence to
indicate that the academic performance of the band students is comparable to
those of students currently living on reserves or Crown lands. The latter do
not necessarily have access to the same range of provincial services, hence the
Program’s raison d’être.
[16]
The
applicants suggest that the purpose of the Program is to transfer federal
jurisdiction over education on the reserves to Indian bands, if not to grant
greater financial autonomy in this area. In my view, this is an incidental aspect
or a secondary effect. In fact, the ongoing primary objective of the Program is
to improve the level of education of students living on reserves or Crown
lands. It must be remembered that establishing an Aboriginal school in a
municipality or designing an education program adapted to the needs of an
Aboriginal population living off‑reserve falls primarily within
provincial jurisdiction, although the federal spending power can incidentally
provide a basis for potential funding of off-reserve initiatives. Regardless,
these aspects go far beyond the narrow legal framework of this application for
judicial review. It would be better to deal with these political and
constitutional issues in another forum, in particular, as part of the
discussions between the Band and INAC, and with the Quebec government. I
understand that negotiations have begun regarding the creation of a land base
and the development of certain infrastructures to meet the particular needs of
the Band and its members.
[17]
Consequently,
although I acknowledge that the Band and its members may have needs in common
with other Aboriginal bands and communities living on reserves or Crown lands,
I do not believe that the Minister’s refusal to grant financial assistance
under the Program to Band students enrolled in elementary or secondary schools
demeans their dignity in this case. Furthermore, there is no basis on which I
could find that the denial of these benefits violates the right of an
Aboriginal community to control the education of its youth. Last, in order for
the collective right being claimed by the applicants to be exercised, separate
schools would need to be established or education programs adapted to the needs
of Aboriginal children would have to be developed. I cannot conclude on the basis
of the evidence in the record that the applicants currently envisage such a
project; therefore, the denial of the right of Aboriginal communities to
control the education of First Nation children is not really at issue and
appears to me to be purely academic in this case.
[18]
This
application for judicial review must therefore fail. Considering the nature of
the issues, the applicants’ situation and the particular facts of this case, it
is not appropriate to award costs to the respondents.
ORDER
THE COURT
ORDERS that the application for judicial review be dismissed without
costs.
“Luc
Martineau”
Mary
Jo Egan, LLB
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