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SUPREME
COURT OF CANADA
Citation: Alberta (Aboriginal Affairs and Northern Development) v.
Cunningham, 2011 SCC 37, [2011] 2
S.C.R. 670
|
Date: 20110721
Docket: 33340
|
Between:
Her
Majesty The Queen in Right of Alberta (Minister
of
Aboriginal Affairs and Northern Development) and
Registrar,
Metis Settlements Land Registry
Appellants
and
Barbara
Cunningham, John Kenneth Cunningham,
Lawrent
(Lawrence) Cunningham, Ralph Cunningham,
Lynn
Noskey, Gordon Cunningham, Roger Cunningham,
Ray
Stuart and Peavine Métis Settlement
Respondents
- and
-
Attorney
General of Ontario, Attorney General of Quebec,
Attorney
General for Saskatchewan, East Prairie Métis
Settlement,
Elizabeth Métis Settlement, Métis Nation of Alberta,
Métis
National Council, Métis Settlements General Council,
Aboriginal
Legal Services of Toronto Inc., Women’s Legal Education
and
Action Fund, Canadian Association for Community Living,
Gift
Lake Métis Settlement and Native Women’s Association of Canada
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 96)
|
McLachlin C.J. (Binnie, LeBel, Deschamps,
Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
|
Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670
Her Majesty The Queen in Right of
Alberta (Minister
of Aboriginal Affairs and Northern
Development) and
Registrar,
Metis Settlements Land Registry Appellants
v.
Barbara Cunningham, John Kenneth
Cunningham,
Lawrent (Lawrence) Cunningham, Ralph
Cunningham,
Lynn Noskey, Gordon Cunningham, Roger
Cunningham,
Ray Stuart
and Peavine Métis Settlement Respondents
and
Attorney
General of Ontario, Attorney General of Quebec,
Attorney
General for Saskatchewan, East Prairie Métis
Settlement,
Elizabeth Métis Settlement, Métis Nation of
Alberta,
Métis National Council, Métis Settlements General
Council,
Aboriginal Legal Services of Toronto Inc., Women’s
Legal
Education and Action Fund, Canadian Association for
Community
Living, Gift Lake Métis Settlement and Native
Women’s
Association of Canada Interveners
Indexed as: Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham
2011 SCC 37
File No.: 33340.
2010: December 16; 2011: July 21.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
on
appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Right to equality — Ameliorative programs
— Alberta Metis Settlements Act providing that voluntary registration under the
Indian Act precludes membership in a Métis settlement — Whether distinction
drawn on enumerated or analogous grounds — Whether program genuinely
ameliorative — Whether distinction serves or advances object of ameliorative
program — Canadian Charter of Rights and Freedoms, s. 15(2) — Metis
Settlements Act, R.S.A. 2000, c. M‑14, ss. 75, 90.
Constitutional law — Charter of Rights — Freedom of association — Alberta Metis
Settlements Act providing that voluntary registration under the Indian Act
precludes membership in a Métis settlement — Whether legislation violates right
to freedom of association — Canadian Charter of Rights and Freedoms,
s. 2 (d) — Metis Settlements Act, R.S.A. 2000, c. M‑14,
ss. 75, 90.
Constitutional law — Charter of Rights — Right to liberty — Alberta Metis
Settlements Act providing that voluntary registration under the Indian Act
precludes membership in a Métis settlement — Whether legislation violates right
to liberty — Canadian Charter of Rights and Freedoms, s. 7 — Metis
Settlements Act, R.S.A. 2000, c. M‑14, ss. 75, 90.
Section 35 of
the Constitution Act, 1982 recognizes three groups of Aboriginal peoples
— Indians, Métis and Inuit. In Alberta, the relationship between the
government and the Métis has evolved to a point where the Métis and the
government entered into negotiations centered on establishing settlement lands
for Métis communities, extending self‑government to those communities,
and ensuring the protection and enhancement of Métis culture and identity. The
negotiations extended to provisions that would allow the Métis to maintain their
separate identity as Métis, distinct from Indians. The Metis Settlements
Act (“MSA”) was enacted as a result of these
negotiations.
The
claimants were formal members of a Métis community in Alberta which was
established and administered under the terms of the MSA. They opted to
register as status Indians in order to obtain medical benefits under the Indian
Act . However, the MSA provides that voluntary registration under
the Indian Act precludes membership in a Métis settlement. Their
membership in the Métis settlement was revoked pursuant to s. 90 of the MSA.
The claimants sought a declaration that the denial of membership pursuant to
ss. 75 and 90 of the MSA was unconstitutional due to violations of
the Charter guarantees of equality, freedom of association and liberty.
The chambers judge dismissed these claims. The Court of Appeal allowed the
appeal, finding that these provisions were inconsistent with the equality
guarantee under s. 15 of the Charter .
Held: The appeal should be allowed and the judgment of the chambers
judge affirmed.
The
s. 15 claim must be dismissed. The MSA is an ameliorative program
protected by s. 15(2) of the Charter . Section 15(2) permits
governments to assist one group without being paralyzed by the necessity to
assist all, and to tailor programs in a way that will enhance the benefits they
confer while ensuring that the protection that s. 15(2) provides against
the charge of discrimination is not abused for purposes unrelated to an
ameliorative program’s object and the goal of substantive equality. Ameliorative
programs, by their nature, confer benefits on one group that are not conferred
on others. These distinctions are generally protected if they serve or advance
the object of the program, thus promoting substantive equality, even where the
included and excluded groups share a similar history of disadvantage and
marginalization.
Where
the government relies on s. 15(2) , the first question is whether the law
makes an adverse distinction against the claimant group on the basis of one of
the grounds set out in s. 15(1) or an analogous ground. If so, the next
question is whether the distinction is saved by s. 15(2) . The government
must show, on the evidence, that the program is a genuinely ameliorative
program directed at improving the situation of a group that is in need of
ameliorative assistance in order to enhance substantive equality, that there is
a correlation between the program and the disadvantage suffered by the target
group, and that rational means are being used to pursue the ameliorative goal. If
these conditions are met, s. 15(2) protects all distinctions drawn on
enumerated or analogous grounds that serve and are necessary to the
ameliorative purpose, to the extent justified by the object of the ameliorative
program. If not, the analysis returns to s. 15(1) and, if substantive
discrimination is established, to s. 1.
In
this case, and assuming that the distinction between the Métis and status
Indians in the MSA is a distinction on an enumerated or analogous
ground, the MSA program is a genuinely ameliorative program. Unlike
many ameliorative programs, its object is not the direct conferral of benefits
on individuals within a particular group, but the enhancement and preservation
of the identity, culture and self‑governance of the Métis through the
establishment of a Métis land base. The correlation between the program and
the disadvantage suffered by the target group, one of the three aboriginal
peoples of Canada recognized in s. 35 of the Constitution, is manifest.
As
excluding Métis who are also status Indians from formal membership in Métis
settlements serves or advances the object of the ameliorative program,
s. 15(2) protects the MSA against the charge of discrimination. The
Métis have a right to their own culture and drawing distinctions on this basis
reflects the Constitution and serves the legitimate expectations of the Métis
people. The exclusion corresponds to the historic and social distinction
between the Métis and Indians and respects the role of the Métis in defining
themselves as a people. Moreover, achieving the object of the program would be
more difficult without the distinction. The fact that some people may identify
as both Métis and Indian does not negate the general correspondence underlying
the distinction between the two groups.
The
record does not provide an adequate basis to assess the claimants’ s. 2 (d)
argument. The s. 7 claim also fails. There is no need to decide whether
place of residence is protected by s. 7 because any impact on
liberty was not shown before the chambers judge to be contrary to the
principles of fundamental justice. Requiring Aboriginal adults who might
otherwise meet the definition of both Indian and Métis to choose whether they
wish to fall under the Indian Act or the MSA is not grossly
disproportionate to the interest of Alberta in securing a land base for the
Métis.
Cases Cited
Referred
to: Alberta (Minister of
International and Intergovernmental Relations) v. Peavine Metis Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1; R. v. Kapp, 2008 SCC
41, [2008] 2 S.C.R. 483; Withler
v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Lovelace
v. Ontario (1997), 33 O.R. (3d) 735, aff’d 2000 SCC
37, [2000] 1 S.C.R. 950; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207;
Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
Statutes and Regulations Cited
Act to amend the Indian Act, S.C. 1985,
c. 27.
Alberta‑Metis Settlements Accord,
1989.
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (d), 7 , 15 .
Constitution Act, 1982, ss. 35 , 52 .
Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C‑24, preamble.
Indian Act, R.S.C. 1985, c. I‑5 .
Metis Betterment Act, R.S.A. 1955, c. 202.
Metis Population Betterment Act, S.A.
1938, 2nd Sess., c. 6, s. 2 (a) “Metis”.
Metis Settlements Act, R.S.A. 2000, c. M‑14,
ss. 0.1, 1(j) “Metis”, 75, 90, 91, 92, 93.
Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.
Transitional Membership Regulation,
Alta. Reg. 337/90.
Authors Cited
Alberta. Report of the MacEwan Joint Committee to Review the Metis
Betterment Act and Regulations: Foundations for the Future of Alberta’s Metis
Settlements. Edmonton: Alberta Municipal Affairs, 1984.
Alberta. Report of the Royal Commission Appointed to Investigate
the Conditions of the Half‑Breed Population of Alberta. Edmonton:
Department of Lands and Mines, 1936.
APPEAL
from a judgment of the Alberta Court of Appeal (McFadyen, Costigan and Ritter JJ.A.), 2009 ABCA 239, 8 Alta. L.R. (5th) 16, 457 A.R. 297, 457 W.A.C.
297, 310 D.L.R. (4th) 519, 194 C.R.R. (2d) 205, [2009] 9 W.W.R. 584, [2009] 3
C.N.L.R. 261, [2009] A.J. No. 678 (QL), 2009 CarswellAlta 952, reversing a
decision of Shelley J., 2007 ABQB 517, 81 Alta. L.R. (4th) 28, 424 A.R. 271,
160 C.R.R. (2d) 185, [2008] 1 W.W.R. 507, [2007] 4 C.N.L.R. 179, [2007] A.J.
No. 913 (QL), 2007 CarswellAlta 1103. Appeal allowed.
Robert J.
Normey and David N. Kamal, for the appellants.
Kevin S.
Feth, Q.C., and Jeremy L. Taylor, for the respondents.
Janet E.
Minor and Mark Crow, for the intervener the Attorney
General of Ontario.
Isabelle Harnois, for the intervener the
Attorney General of Quebec.
Written
submissions only by P. Mitch McAdam and R. James Fyfe,
for the intervener the Attorney General for Saskatchewan.
Richard B.
Hajduk and Rodger C.
Gibbs, for
the intervener the East Prairie Métis Settlement.
Thomas R.
Owen and Tara Rout, for the intervener the
Elizabeth Métis Settlement.
Beverly J. M.
Teillet, for
the intervener the Métis Nation of Alberta.
Jason Madden, Clément Chartier, Q.C., and Kathy L.
Hodgson‑Smith, for the intervener the Métis National Council.
Garry Appelt and Keltie L. Lambert, for the intervener the Métis
Settlements General Council.
Jonathan Rudin and Mandy Wesley, for the intervener the
Aboriginal Legal Services of Toronto Inc.
Dianne Pothier and Joanna L. Birenbaum, for the intervener the Women’s
Legal Education and Action Fund.
Laurie Letheren and C. Tess Sheldon, for the intervener the
Canadian Association for Community Living.
Sandeep K.
Dhir and Lindsey E. Miller, for the intervener the Gift
Lake Métis Settlement.
Mary Eberts, for the intervener the Native
Women’s Association of Canada.
The
judgment of the Court was delivered
by
The Chief Justice —
I. Overview
[1]
Section 35 of the Constitution Act, 1982 recognizes
three groups of Aboriginal peoples — Indians, Métis and Inuit. The claimants
are members of the Métis settlement of Peavine, Alberta; they are also status
Indians. The Metis Settlements Act, R.S.A. 2000, c. M-14 (“MSA”),
does not permit status Indians to become formal members of any Métis settlement,
including Peavine. The claimants now apply for a declaration that this denial
of membership violates the Canadian Charter of Rights and Freedoms guarantees
of equality, freedom of association and liberty, and is unconstitutional.
[2]
I conclude that the claimants have failed to
establish that the sections of the MSA that led to their exclusion from
the Peavine settlement are unconstitutional.
[3]
The claimants assert that the MSA’s
exclusion of Métis who are also status Indians from membership in the Peavine
Métis Settlement violates the guarantee of equality of s. 15 of the Charter .
I conclude that s. 15(2) of the Charter , which permits
inequalities associated with ameliorative programs aimed at helping a disadvantaged
group, provides a complete answer to this claim. The purpose and effect of the MSA
is to enhance Métis identity, culture, and self-governance by creating a land
base for Métis. The exclusion of status Indians from membership in the new
Métis land base serves and advances this object and hence is protected by s.
15(2) . I also conclude that the claimants have failed to establish that the MSA’s
exclusion from membership in the settlement violates freedom of association
under s. 2 (d) of the Charter or liberty under s. 7 of the Charter .
[4]
I would therefore allow the appeal and affirm
the judgment of the chambers judge.
II. The History and Framework of
the Program
[5]
The Métis were originally the descendants of
eighteenth-century unions between European men — explorers, fur traders and
pioneers — and Indian women, mainly on the Canadian plains, which now form part
of Manitoba, Saskatchewan and Alberta. Within a few generations the descendants
of these unions developed a culture distinct from their European and Indian
forebears. In early times, the Métis were mostly nomadic. Later, they
established permanent settlements centered on hunting, trading and agriculture.
The descendants of Francophone families developed their own Métis language
derived from French. The descendants of Anglophone families spoke English. In
modern times the two groups are known collectively as Métis.
[6]
Following the Royal Proclamation of 1763 (reproduced
in R.S.C. 1985, App. II, No. 1), which organized the territories recently
acquired by Great Britain and reserved certain lands for Indians, the Crown
adopted a practice of making treaties with Indian bands. Thus, most Indians on
the prairies are Treaty Indians. In exchange for surrendering their
traditional lands to the Crown, they were granted reservations and other
benefits, such as the right to hunt and trap on Crown land. Today, the welfare
of Indians is dealt with under the Indian Act, R.S.C. 1985, c. I-5 , which
provides a variety of benefits to status Indians living on and off reserve.
[7]
The Crown did not apply to the Métis its policy
of treating with the Indians and establishing reservations and other benefits
in exchange for lands. In some regions, it adopted a scrip system that
accorded allotments of land to individual Métis. However, Métis communities
were not given a collective reservation or land base; they did not enjoy the
protections of the Indian Act or any equivalent. Although widely
recognized as a culturally distinct Aboriginal people living in culturally distinct
communities, the law remained blind to the unique history of the Métis and
their unique needs.
[8]
Governments slowly awoke to this legal lacuna. In
1934, the Alberta legislature established the Ewing Commission, a “Royal
Commission Appointed to Investigate the Conditions of the Half-Breed Population
of Alberta”. The mandate of the Commission was to inquire into the problems of “health,
education, relief and general welfare of [the half-breed] population” and to
make recommendations based on its investigation.
[9]
The Ewing Commission Report (1936) defined
the terms “Metis” or “half-breed” for its own purposes as “a person of mixed
blood, white and Indian, who lives the life of the ordinary Indian, and
includes a non-treaty Indian” but excluding persons of mixed blood (Indian and
white) who had settled down as farmers and who did not need or desire public
assistance (p. 4).
[10]
The Metis Population Betterment Act, S.A. 1938, 2nd Sess., c. 6, was enacted as a result of the
findings and recommendations of the Ewing Commission. The term “Metis” was
defined in s. 2(a) of the Act as:
. . . a person of mixed white and
Indian blood but does not include either an Indian or a non-treaty Indian
as defined in The Indian Act , being chapter 98 of the Revised
Statutes of Canada, 1927.
[11]
Renamed, The Metis Betterment Act,
R.S.A. 1955, c. 202, continued to exclude anyone registered as an Indian under
the Indian Act from the definition of “Metis” and expanded the
exclusion to encompass anyone with the ability to be registered as an Indian
under the Indian Act : s. 2 (a).
[12]
The Metis Betterment
Act, while according limited statutory recognition
to Métis, did not compel the Province of Alberta to establish a land base for
Métis communities; nor did it provide adequate support for preservation of the
distinct Métis identity and culture. Like the predecessor legislation, it
continued to deny the Métis any form of self-government.
[13]
The landscape shifted dramatically in 1982, with
the passage of the Constitution Act, 1982 . In the period leading
up to the amendment of the Constitution, Indian, Inuit and Métis groups fought
for constitutional recognition of their status and rights. Section 35 of the Constitution
Act, 1982 entrenched existing Aboriginal and treaty rights and recognized
three Aboriginal groups — Indians, Inuit, and Métis. For the first time, the
Métis were acknowledged as a distinct rights-holding group.
[14]
In anticipation of the coming into force of the Constitution
Act, 1982 , the Province of Alberta struck a Joint Métis-Government
Committee to review The Metis Betterment Act and Regulations. The
Committee, comprised of the chair, the late Grant MacEwan, who was chosen by
the Métis and government, along with two members from government and two from the
Métis community, prepared a report, dated July 12, 1984, setting out its
conclusions and recommendations (Report of the MacEwan Joint Committee to
Review the Metis Betterment Act and Regulations: Foundations for the
Future of Alberta’s Metis Settlements (“MacEwan Report”)).
[15]
The MacEwan Report defined a “Metis” simply as
“an individual of aboriginal ancestry who identifies with Metis history and
culture” (at p. 12), and recommended legislation to secure a land base and
self-government for Métis communities in the province. The Alberta legislature
accepted these recommendations in principle by authorizing an amendment to the Constitution
of Alberta Amendment Act, 1990, R.S.A. 2000, c. C-24.
[16]
A period of negotiation between the Métis of
Alberta and the government of Alberta followed. The negotiations centered on
establishing settlement lands for Métis communities, extending self-government
to those communities, and ensuring the protection and enhancement of Métis
culture and identity. Importantly for this case, the negotiations extended to
provisions that would allow the Métis to maintain their separate identity as
Métis, distinct from Indians.
[17]
These negotiations culminated on July 1, 1989,
with the Alberta-Metis Settlements Accord. The following year, pursuant
to the Accord, Alberta granted the Métis Settlements General Council fee
simple title to the lands of the eight Métis communities and passed a suite of
legislation to protect Métis rights, including the MSA at issue here.
[18]
The constitution of Alberta, which, in the
British tradition, is unwritten, was amended to provide constitutional
recognition for the changes. The preamble to the Constitution of Alberta
Amendment Act, 1990 offers crucial insight into the objects of the
legislation:
WHEREAS the Metis were present when the Province
of Alberta was established and they and the land set aside for their use form a
unique part of the history and culture of the Province; and
WHEREAS it is desired that the Metis should continue
to have a land base to provide for the preservation and enhancement of Metis
culture and identity and to enable the Metis to attain self-governance under
the laws of Alberta and, to that end, Her Majesty in right of Alberta is granting
title to land to the Metis Settlements General Council; and
WHEREAS Her Majesty in right of Alberta has
proposed the land so granted be protected by the Constitution of Canada, but
until that happens it is proper that the land be protected by the constitution
of the Province; . . .
[19]
The Recital to the MSA, added in 2004,
contains the following expression of purpose:
0.1 This Act is enacted
(a) recognizing
the desire expressed in the Constitution of Alberta Amendment Act, 1990
that the Metis should continue to have a land base to provide for the
preservation and enhancement of Metis culture and identity and to enable the Metis
to attain self-governance under the laws of Alberta,
(b) realizing
that the Crown in right of Alberta granted land to the Metis Settlements
General Council by letters patent and that the patented land is protected by an
amendment to the Constitution of Alberta and by the Metis Settlements
Land Protection Act,
(c) in
recognition that this Act, the Constitution of Alberta Amendment Act, 1990,
the Metis Settlements Land Protection Act and the Metis Settlements
Accord Implementation Act were enacted in fulfilment of Resolution 18 of
1985 passed unanimously by the Legislative Assembly of Alberta, and
(d) acknowledging that the
Government of Alberta and the Alberta Federation of Metis Settlement
Associations made The Alberta‑Metis Settlements Accord on July 1, 1989.
[20]
The MSA defined “Metis” for its purposes
as “a person of aboriginal ancestry who identifies
with Metis history and culture” (s. 1(j)). Consistent with the
negotiations that preceded it and the desire to preserve Métis culture and
identity, the MSA limited the scope for status Indians to be recognized
as members of settlement communities. Section 75 provides that persons
registered as Indians or Inuit may not apply for membership in a Métis settlement,
unless certain conditions are met and membership is authorized by a settlement
bylaw. Because its provisions are central to this case, I set out s. 75 in relevant
part:
75(1) An Indian
registered under the Indian Act (Canada) or a person who is registered
as an Inuk for the purposes of a land claims settlement is not eligible to
apply for membership or to be recorded as a settlement member unless subsection
(2) or (3.1) applies.
(2) An Indian
registered under the Indian Act (Canada) or a person who is registered
as an Inuk for the purposes of a land claims settlement may be approved as a
settlement member if
(a) the
person was registered as an Indian or an Inuk when less than 18 years old,
(b) the
person lived a substantial part of his or her childhood in the settlement area,
(c) one
or both parents of the person are, or at their death were, members of the
settlement, and
(d) the
person has been approved for membership by a settlement bylaw specifically
authorizing the admission of that individual as a member of the settlement.
(3) If a person
who is registered as an Indian under the Indian Act (Canada) is able to
apply to have his or her name removed from registration, subsection (2) ceases
to be available as a way to apply for or to become a settlement member.
(3.1) In addition
to the circumstances under subsection (2), an Indian registered under the Indian
Act (Canada) or a person who is registered as an Inuk for the purposes of a
land claims settlement may be approved as a settlement member if he or she
meets the conditions for membership set out in a General Council Policy.
. . .
[21]
Additionally, the Transitional Membership
Regulation, Alta. Reg. 337/90, permitted those registered on a settlement
membership list upon the entry into force of the MSA to maintain their
membership even if they were already registered or were eligible to register as
Indians under the Indian Act . Persons registering as Indians after the
coming into force of the MSA on November 1, 1990, were not covered by
these grandfathering provisions.
[22]
Section 90 of the MSA confirms that
voluntary registration under the Indian Act precludes membership in a
Métis settlement unless a General Council Policy provides otherwise:
90(1) Unless a
General Council Policy provides otherwise, a settlement member terminates
membership in a settlement if
(a) the
person voluntarily becomes registered as an Indian under the Indian Act (Canada),
or
(b) the
person becomes registered as an Inuk for the purpose of a land claims
agreement.
(2) On receipt from the settlement council of notice of a termination of
membership under subsection (1), and after any verification of the facts that
is considered necessary, the Minister must remove the name of the person
concerned from the Settlement Members List.
No General Council Policy
addressing settlement membership for status Indians has been passed.
[23]
A settlement member who loses membership under
these provisions loses any interest in the settlement land, but may continue to
reside on a Métis settlement unless expelled. Sections 91 and 93 provide:
91(1) When the
membership of a settlement member terminates or is terminated, the member
(a) loses
any rights gained by his or her former membership to reside on or occupy
patented land, but
(b) does
not lose any right to reside on patented land acquired by or under this or any
other enactment, a General Council Policy or a settlement bylaw.
(2) The
termination of settlement membership does not affect any right acquired by the
spouse or adult interdependent partner or minor children of the member to
continue to reside on patented land.
(3) A
settlement council and a person whose membership has been terminated may agree
on the compensation to be paid to the former settlement member for improvements
made on land held by the member and if they cannot agree either of them may
refer the matter to the Appeal Tribunal.
. . .
93(1) A person who
is permitted to reside in a settlement area under section 92 is entitled to
continue to reside in the area unless the settlement council, for just cause,
orders the person expelled from the settlement area.
(1.1) A settlement
council may order a person who is not permitted to reside in the settlement
area expelled from the settlement area if the person refuses to leave the
settlement area on the request of the settlement council.
(2) No order can be made under subsection (1) or (1.1) unless the person
concerned has been given an opportunity to tell the settlement council why he
or she should be able to remain in the settlement area.
[24]
While the negotiations proceeded with the
Alberta Métis to achieve a land base, self-governance and support for Métis
culture and identity, an important change was made to broaden the definition of
who could register as an Indian under the federal Indian Act . In An
Act to amend the Indian Act, S.C. 1985, c. 27 (Bill C-31), Parliament
reinstated the right to Indian status for many Métis settlement members who had
been previously denied status, including the claimants. Prior to this
amendment, Indian women who married Métis men lost their Indian status and
could not pass it to their descendants. The new act went some way towards
correcting this injustice, recognized the descendants of these unions, and gave
them the option of registering as status Indians.
[25]
The claimants, members of the Métis settlement
of Peavine, opted to register as status Indians in order to obtain medical
benefits under the Indian Act . They did so outside the limited window
provided by the Transitional Membership Regulation. As a result,
the Registrar of the Métis Settlements Land Registry revoked their membership
in the settlement of Peavine, under s. 90 of MSA. They sued for a
declaration that s. 90 and its companion provision, s. 75, are inconsistent
with ss. 15 , 2 (d) and 7 of the Charter in a manner that cannot be
justified under s. 1 and are thus null and void under s. 52 of the Constitution
Act, 1982 .
[26]
Underlying this litigation is the suggestion
that the manner in which the Cunninghams’ registration was revoked was
procedurally unfair. The list that the Peavine Council submitted to the
Registrar of the Métis Settlements Land Registry for revocation of membership
did not include all of the members who had obtained Indian status, but only the
members of the Cunningham family. Following related proceedings (Alberta
(Minister of International and Intergovernmental Relations) v. Peavine Metis
Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1), the Registrar
removed the claimants from the Peavine membership list on May 10, 2001. Though
bad faith and improper motivations were alleged against the then Council, no
judicial review or other action was commenced on that basis. Accordingly, the
matter of how the revocation proceeded is not before this Court.
III. The Rulings in the Alberta
Courts
A. The Chambers Judge
[27]
The chambers judge, Shelley J., dismissed the
claimants’ application (2007 ABQB 517, 81 Alta. L.R. (4th) 28). She accepted
the claimants’ view that the exclusion from membership was based on the
analogous ground of registration as a status Indian. She concluded, however,
that the MSA did not violate the equality provision of s. 15(1) of the Charter
because the relevant contextual factors did not establish that ss. 75 and
90 resulted in the stereotyping or disadvantage required to show
discrimination. She accepted that the provisions might cause the claimants to
lose their right to reside on the Peavine settlement without having obtained
corresponding benefits under the Indian Act , and that even if they were
able to continue to reside on the land under s. 92 , as it appeared they
currently did, they would have no say in settlement governance or the right to
vote. However, they would have acquired benefits available to them under the Indian
Act as status Indians.
[28]
Although she did not conduct an analysis under
s. 15(2) of the Charter (her decision was before R. v. Kapp, 2008
SCC 41, [2008] 2 S.C.R. 483, which clarified the steps of the s. 15(2)
analysis), the chambers judge concluded that the ameliorative purpose and
effect of the MSA supported the exclusion under ss. 75 and 90 of Métis
who registered as status Indians. In her view, the purposes of enhancing Métis
culture and identity, as well as the preservation of land rights and self-governance,
were furthered by the exclusion of status Indians, subject to any General
Council Policy. While the loss of the right to participate in the governance of
the Métis community with which they had been associated on a long-term basis
was a severe consequence, this was offset by the fact that by registering as
Indians under the Indian Act , the claimants had chosen to receive other
rights and benefits.
[29]
The chambers judge also dismissed the
Cunninghams’ s. 2 (d) claim for breach of freedom of association. Section
2 (d) of the Charter , she held, protects association only for the
purpose of protecting fundamental freedoms, not access to a particular
statutory regime. The privilege of membership does not exist independently of
the legislative regime established by the MSA. Moreover, the claimants
had not shown substantial interference with their associational right, in the
sense that the MSA made it next to impossible for them to pursue common
goals. It was their decision to register as Indians, not state action, that
resulted in any inability to exercise fundamental freedoms.
[30]
Finally, the chambers judge found no violation
of s. 7 of the Charter . Even if the MSA limited the claimants’
liberty by jeopardizing their right to reside on the Peavine settlement, the deprivation
was not arbitrary or grossly disproportionate, and hence not contrary to the
principles of fundamental justice, as required by s. 7 . She found that
“[r]equiring aboriginal adults who might otherwise meet the definition of both
Indian and Métis to choose which legislative scheme they wish to fall under —
the Indian Act or the MSA — is not a requirement which is grossly
disproportionate to the interest of Alberta in securing a land base for the
Métis” (para. 130).
B. The Court of Appeal
[31]
The Court of Appeal concluded that ss. 75 and 90
were inconsistent with the equality guarantee in s. 15 of the Charter
and thus invalid, and directed registration of the claimants as members of the
Peavine settlement (2009 ABCA 239, 8 Alta. L.R. (5th) 16).
[32]
As there was no dispute that registration as a
status Indian was an analogous ground under s. 15(1) of the Charter , the
court, proceeding post-Kapp, moved to s. 15(2) , which provides
that governments may adopt ameliorative programs that might otherwise be viewed
as conferring benefits unequally without violating s. 15 . It held that, for
the exclusion of status Indians to be saved by s. 15(2) by virtue of having an
ameliorative or remedial purpose, it must be rationally connected to the
enhancement and preservation of Métis culture and self-governance and the
securing of a Métis land base. This was not established, in the court’s view.
Noting that the exclusion from membership of people who had identified with and
lived in the Métis culture for all or most of their lives was “relatively
arbitrary”, the court concluded that “[i]t is difficult to imagine that such
exclusion is in furtherance of the enhancement and preservation of Métis
culture, identity and self-governance” (para. 28). Moreover, since Métis
membership is rooted in Aboriginal ancestry, removal of membership is at odds
with the goal of enhancing Métis culture. There was no evidence that
settlements were being overrun by status Indians or that the number of status
Indians seeking settlement membership would impair the aims of the MSA.
Finally, denying status Indians membership because of registration under the Indian
Act constituted a punishment for behaviour — registering as status Indians
— which should not be protected by s. 15(2) . The court concluded that
exclusion was not rationally connected to advancing a legislative purpose, and
was not saved by s. 15(2) .
[33]
Returning to s. 15(1) , the Court of Appeal held
that the law stereotyped people like the claimants as being “less Métis”
because of their registration under the Indian Act in a way that did not
correspond to their actual circumstances (para. 43). The court concluded that
they “are vulnerable to both a unique disadvantage and to stereotyping . . .
resulting in differential treatment and discrimination” (para. 45).
[34]
The Court of Appeal declined to rule on whether
freedom of association under s. 2 (d) was violated, as there was
insufficient evidence and argument on the issue. It also declined to rule on
the s. 7 claim.
[35]
Accepting the government’s claimed purpose —
promoting the Métis culture, protecting and distinguishing it from Indian
culture, furthering self-governance, and preserving a Métis land base — the
court held that there was no pressing and substantial objective capable of
justifying the infringement of s. 15(1) of the Charter caused by the
exclusion of the claimants and other status Indians from settlement membership
under ss. 75 and 90 of the MSA. The promotion of Métis culture could
not serve as such an objective, since there was no evidence to support the view
that the provisions were meant to help protect and distinguish Métis culture
from Indian culture. Nor could the goal of furthering self-governance serve as
an objective because there was no evidence that the provisions provide Métis
settlements with means of controlling their membership.
[36]
The Court of Appeal added that, had a pressing
and substantial objective been established, exclusion would still not be justified
under s. 1 because ss. 75 and 90 were neither rationally connected to the
objective nor minimally impairing. The absolute removal of membership went
beyond what was necessary to achieve the goals of distinguishing Métis culture
from Indian culture and self-governance, in the court’s view. Consequently, the
membership provisions could not be saved by s. 1, and the appeal was allowed.
IV. The Equality Claim Under Section
15 of the Charter
[37]
Section 15 of the Charter states:
15.
(1) 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.
(2) Subsection
(1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
A. The Purpose of Section 15(2)
[38]
Section 15 of the Charter protects
against discriminatory laws and government actions. Its goal is to enhance
substantive equality. It does this in two ways.
[39]
First, s. 15(1) is aimed at preventing
discrimination on grounds such as race, age and sex. Laws and government acts
that perpetuate disadvantage and prejudice, or that single out individuals or
groups for adverse treatment on the basis of stereotypes, violate s. 15(1) and
are invalid, subject to justification under s. 1 of the Charter : Kapp; Withler v. Canada (Attorney General), 2011
SCC 12, [2011] 1 S.C.R. 396.
[40]
Second, s. 15(2) is aimed at permitting
governments to improve the situation of members of disadvantaged groups
that have suffered discrimination in the past, in order to enhance substantive
equality. It does this by affirming the validity of ameliorative programs that
target particular disadvantaged groups, which might otherwise run afoul of s.
15(1) by excluding other groups. It is unavoidable that ameliorative programs,
in seeking to help one group, necessarily exclude others.
[41]
The purpose of s. 15(2) is to save ameliorative
programs from the charge of “reverse discrimination”. Ameliorative programs
function by targeting specific disadvantaged groups for benefits, while
excluding others. At the time the Charter was being drafted,
affirmative action programs were being challenged in the United States as
discriminatory — a phenomenon sometimes called reverse discrimination. The
underlying rationale of s. 15(2) is that governments should be permitted to
target subsets of disadvantaged people on the basis of personal
characteristics, while excluding others. It recognizes that governments may
have particular goals related to advancing or improving the situation of
particular subsets of groups. Section 15(2) affirms that governments may not
be able to help all members of a disadvantaged group at the same time, and
should be permitted to set priorities. If governments are obliged to benefit
all disadvantaged people (or all subsets of disadvantaged people) equally, they
may be precluded from using targeted programs to achieve specific goals
relating to specific groups. The cost of identical treatment for all would be
loss of real opportunities to lessen disadvantage and prejudice.
B. The Steps Under Section 15(2)
[42]
This Court in Kapp set out the basic
framework for cases where the government relies on s. 15(2).
[43]
As in all s. 15 cases, the first question is
whether the law makes an adverse distinction against the claimant group on the
basis of one of the grounds set out in s. 15(1) or an analogous ground.
[44]
If so, and if the government relies on s. 15(2)
to defend the distinction, the analysis proceeds immediately to whether the
distinction is saved by s. 15(2). To establish this, the government must show
that the program is a genuinely ameliorative program directed at improving the
situation of a group that is in need of ameliorative assistance in order to
enhance substantive equality: Kapp, at para. 41. There must be a
correlation between the program and the disadvantage suffered by the target
group: Kapp, at para. 49. Courts must examine the program to determine
whether, on the evidence, the declared purpose is genuine; a naked declaration
of an ameliorative purpose will not attract s. 15(2) protection against a claim
of discrimination: Kapp, at para. 49.
[45]
If these conditions are met, s. 15(2) protects
all distinctions drawn on enumerated or analogous grounds that “serve and are
necessary to” the ameliorative purpose: Kapp, at para. 52. In this
phrase, “necessary” should not be understood as requiring proof that the
exclusion is essential to realizing the object of the ameliorative program.
What is required is that the impugned distinction in a general sense serves or
advances the object of the program, thus supporting the overall s. 15 goal of
substantive equality. A purposive approach to s. 15(2) focussed on substantive
equality suggests that distinctions that might otherwise be claimed to be
discriminatory are permitted, to the extent that they go no further than is
justified by the object of the ameliorative program. To be protected, the
distinction must in a real sense serve or advance the ameliorative goal,
consistent with s. 15 ’s purpose of promoting substantive equality.
[46]
The fundamental question is this: up to what
point does s. 15(2) protect against a claim of discrimination? The tentative
answer suggested by Kapp, as discussed above, is that the distinction
must serve or advance the ameliorative goal. This will not be the case, for
instance, if the state chooses irrational means to pursue its ameliorative
goal. This criterion may be refined and developed as different cases emerge.
But for our purposes, it suffices.
[47]
If s. 15(2) does not protect the impugned
distinction, the analysis returns to s. 15(1) to determine whether the
distinction constitutes substantive discrimination by perpetuating disadvantage
or prejudice or by inappropriately stereotyping the excluded group.
[48]
If substantive discrimination is established
under s. 15(1), the final question is whether the government has shown it to be
justified under s. 1 of the Charter .
[49]
Section 15(2), understood in this way, permits
governments to assist one group without being paralyzed by the necessity to assist
all, and to tailor programs in a way that will enhance the benefits they confer
while ensuring that the protection that s. 15(2) provides against the charge of
discrimination is not abused for purposes unrelated to an ameliorative
program’s object and the goal of substantive equality.
[50]
This understanding of s. 15(2) is consistent
with the approach to an ameliorative program taken in the earlier case of Lovelace
v. Ontario (1997), 33 O.R. (3d) 735 (Ont. C.A.), aff’d 2000 SCC 37, [2000]
1 S.C.R. 950, which upheld a similar distinction from a benefit under an
ameliorative program. The ameliorative program at issue in Lovelace, as
here, involved different groups of Aboriginal people — registered Indian bands,
who have reserves, and unregistered Indian bands and the Métis, who do not have
reserves. It sought to enhance the situation of one of these groups,
on-reserve Indians, by permitting the establishment of a reserve-based casino.
As here, the excluded group of off-reserve Ontario Aboriginals claimed that the
distinction discriminated against them contrary to s. 15 of the Charter .
[51]
While Lovelace pre-dated Kapp, the
Ontario Court of Appeal’s analysis followed a broadly similar template. The court
first examined whether the program was a genuinely ameliorative program. Having
confirmed that it was, it then asked whether restriction of the benefits of the
casino program to on-reserve Indians (members of registered reserve bands)
conformed to the object of the program. It concluded that it did. The object of
the scheme was to benefit on-reserve Indians. The narrow focus of the program
corresponded to historic, social and governance differences between the
targeted groups and other Aboriginal groups. It also supported the program’s
object of enhancing the situation of on-reserve Indians; the court observed
that if the program were extended to all Ontario Aboriginals, it would not
achieve its goal. Those factors, along with the magnitude of the project, its
attendant social risks and its status as a pilot project, supported the claim
that the true purpose of the program was to ameliorate the social and economic
conditions of the targeted group — the registered bands. No further proof was
needed to show that the program was authorized by s. 15(2) (pp. 758-63).
[52]
On further appeal, this Court (albeit proceeding
under s. 15(1) and using s. 15(2) as an interpretive guide only) confirmed that
conclusion, emphasizing that the distinction made by the program between
members of the registered reserve bands and off-reserve Aboriginals was
consistent with the purpose of securing substantive equality that underlies s.
15 as a whole. Despite the shared disadvantage of the included and excluded
groups, this Court in Lovelace concluded that social and historic differences
between the two groups, as well as realization of the object of the program,
supported the distinction between on-reserve and off-reserve Indians and
Métis. The exclusion from the casino program of Aboriginal communities not
benefitting from band status under the Indian Act was thus upheld.
[53]
This brings us to the following propositions.
Ameliorative programs, by their nature, confer benefits on one group that are not
conferred on others. These distinctions are generally protected if they serve
or advance the object of the program, thus promoting substantive equality.
This is so even where the included and excluded groups are aboriginals who
share a similar history of disadvantage and marginalization: Lovelace.
[54]
These propositions, as discussed more fully below,
suffice to resolve the issue that arises in this case. What is at issue here
is a special type of ameliorative program — one designed to enhance and
preserve the identity, culture and self-governance of a constitutionally recognized
group. The group targeted by the program precisely corresponds to a group that
is identified as one of the groups that make up the “aboriginal peoples of
Canada” in s. 35 of the Constitution Act, 1982 . The object of enhancing
the identity, culture and self-governance of the Métis as a s. 35 group, of
necessity, must permit the exclusion of other s. 35 groups since an essential
part of their unique identity is that they are “not Indian” and “not Inuit”.
[55]
It is therefore unnecessary to embark on a lengthy
consideration of precisely what considerations may enter into the issue of how
distinctions are made for ameliorative programs in different types of cases.
The law is best left to develop on an incremental basis.
C. Application
1. Is the Distinction Based on an Enumerated or Analogous
Ground of Discrimination?
[56]
Following the analysis set out in Kapp,
the first question is whether the distinction between Métis and status Indians
in the MSA constitutes a distinction on an enumerated or analogous
ground, thereby attracting s. 15 protection. Absent such a distinction, no
claim lies under s. 15 .
[57]
The ground advanced and applied in the courts
below is registration as a status Indian, as distinguished from non-status
Indians or Métis. This ground was accepted as analogous without much
discussion below.
[58]
I refrain from making a determination as to
whether registration as a status Indian constitutes an analogous ground of
discrimination. The trial judge’s conclusion that it did constitute an
analogous ground was not challenged by the Crown in Right of Alberta before the
Court of Appeal and the parties have not thoroughly canvassed the issue before
this Court. Since the case has proceeded on the assumption that an analogous
ground was made out, I will assume that it has been, and consider the remaining
aspects of s. 15 as they apply in this case.
2. Is the Program a
Genuinely Ameliorative Program?
[59]
To qualify as a genuinely ameliorative program,
the program must be directed at improving the situation of a group that is in
need of ameliorative assistance: Kapp, at para. 41. There must be a
correlation between the program and the disadvantage suffered by the target
group: Kapp, at para. 49. The goal is to promote the substantive
equality of the group: Kapp, at para. 16. To ascertain whether these
conditions are met, one looks first to the object of the program, and then asks
whether it correlates to actual disadvantage suffered by the target group.
[60]
I begin with the object of the MSA program.
The discussion that follows establishes that the object of the program is to
enhance Métis identity, culture and self-government through the establishment
of a Métis land base. This is a special type of ameliorative program. Unlike
many ameliorative programs, the object of the program is not the direct
conferral of benefits onto individuals within a particular group, but the
strengthening of the identity of Métis as a group — one of three aboriginal
groups recognized in the Constitution.
[61]
The object of an ameliorative program must be
determined as a matter of statutory interpretation, having regard to the words
of the enactment, expressions of legislative intent, the legislative history,
and the history and social situation of the affected groups. Defining the
objective of the ameliorative program too broadly or too narrowly will skew the
analysis.
[62]
Applying this approach, I conclude that the
object of the MSA program is not the broad goal of benefiting all
Alberta Métis, as the claimants contend, but the narrower goal of establishing
a Métis land base to preserve and enhance Métis identity, culture and
self-governance, as distinct from surrounding Indian cultures and from other
cultures in the province.
[63]
I turn first to the words of the enactment. The preamble
to the amendments to the Constitution of Alberta
Amendment Act emphasizes the desire to preserve the “unique” Métis culture
and identity. It refers to the land set aside for Métis use as forming “a
unique part of the history and culture of the Province”. It states that it is
desirable “that the Metis should continue to have a land base to provide for
the preservation and enhancement of Metis culture and identity and to enable
the Metis to attain self-governance”.
[64]
The MSA echoes these objects in its Recital,
which proclaims that “the Metis should continue to have a land base to provide
for the preservation and enhancement of Metis culture and identity and to
enable the Metis to attain self-governance under the laws of Alberta”.
[65]
The wording of the MSA’s provisions
supports the view that the object of the ameliorative program was to benefit Métis,
as distinct from Indians, by setting up a land base that would strengthen an
independent Métis identity, culture and desire for self-governance. The title
of the statute, the “Metis Settlements Act”, suggests that the focus is
not on benefiting the Métis generally, but on establishing land-based
settlements. The enactment sets out detailed provisions for the establishment of
a Métis land base and governance of the land base by Métis members.
[66]
The history of the struggle that culminated in
the MSA supports this view of the object of the challenged legislation.
The MSA, as discussed earlier, is the result of a negotiation process
between the Métis of Alberta and the Province and the outcome of an ongoing
struggle for self-preservation. The Métis considered themselves as one of
three Aboriginal groups in Canada, but this was not recognized until the Constitution
Act, 1982 . Unlike Indians, however, they enjoyed no land base from which
to strengthen their identity and culture or govern themselves. Nor did they
enjoy the protection of an equivalent to the Indian Act . Their
aboriginality, in a word, was not legally acknowledged or protected. Viewed in
this perspective, the ameliorative program embodied in the MSA emerges
as an attempt to provide to Alberta’s Métis settlements similar protections to
those which various Indian bands have enjoyed since early times.
[67]
From the beginning, the quest that led to the MSA
was premised on the view that the Métis, while Aboriginals, were unique —
that they were different from Indians. The first step was the Ewing Commission
in 1934, which led to the recognition that the Métis were distinct from other
Aboriginal groups, notably Indians, in The Metis Population Betterment Act of
1938. The MSA, which was the result of a review of The Metis
Betterment Act, which was in turn prompted by the recognition of the Métis
as a distinct Aboriginal group in the Constitution Act, 1982 , maintains
the historic insistence on the need to exclude Indians from membership in Métis
settlements. The current membership provision is less exclusionary and
arbitrary than the earlier statutes, which absolutely excluded all actual and
potential status Indians, but the MSA maintains the requirement for a
distinct Métis settlement which, subject to limited exceptions, excludes status
Indians from living on settlement lands.
[68]
The Constitution Act, 1982 , gave
constitutional recognition to the Métis as one of three distinct Aboriginal
groups, provoking review of The Metis Betterment Act and Regulations.
The MacEwan Committee was conceived as a partnership, composed of a jointly
chosen chair and an equal number of Métis and non-Métis Commissioners. The MSA
was the ultimate result of the Committee’s work and the negotiations that
followed over the next five years.
[69]
In summary, the preamble, wording, legislative
history, and social context of the MSA combine to support the
conclusion that the MSA is not a general benefit program, but a unique
scheme that seeks to establish a Métis land base to preserve and enhance Métis
identity, culture and self-government, as distinct from Indian identity,
culture and modes of governance. In seeking this objective, it reflects the
constitutional scheme, which endorses Indians, Métis and Inuit as distinct
Aboriginal groups with distinct identities, cultures and rights.
[70]
Finally, as required by Kapp, there is a
correlation between the program and the disadvantage suffered by the target
group. In this case, the correlation is manifest. The history of the Métis
is one of struggle for recognition of their unique identity as the mixed race
descendants of Europeans and Indians. Caught between two larger identities and
cultures, the Métis have struggled for more than two centuries for recognition
of their own unique identity, culture and governance. The constitutional
amendments of 1982 and, in their wake, the enactment of the MSA, signal
that the time has finally come for recognition of the Métis as a unique and
distinct people.
[71]
I conclude that the MSA, while unique, is
a genuinely ameliorative program. Provided that the means of implementation
chosen by the legislature serves or advances this end, s. 15(2) protects the MSA
against the charge of discrimination.
3. Does the Distinction Serve or
Advance the Object of the Ameliorative Program?
[72]
The object of the MSA is to benefit the members
of a constitutionally identified and protected group by enhancing the identity,
culture and self-governance of the group. In order to achieve this object, the
legislature has excluded Métis who are also status Indians from membership in
the settlement for purposes of establishing a Métis land base. The question is
whether this distinction serves or advances its object.
[73]
In my view, the line drawn by the MSA
between Métis and Métis who are also status Indians with respect to membership,
serves and advances the object of the program. It is supported by historic
distinctions between Métis and Indian culture; by the fact that, without the
distinction, achieving the object of the program would be more difficult; and
by the role of the Métis settlement in defining its membership.
[74]
Before discussing these matters in more detail,
I note that the chambers judge concluded that exclusion of status Indians from
membership in the Peavine Métis Settlement furthered the object of enhancing
Métis culture, identity and governance. The Court of Appeal, while accepting
that the MSA was a genuinely ameliorative program, overturned this
finding on the basis there was “no evidence” that the exclusion would enhance
those goals. In my view, the Court of Appeal erred in demanding positive proof
that an impugned distinction will in the future have a particular impact. As Kapp
makes clear, all the government need show is that it was “rational for the
state to conclude that the means chosen to reach its ameliorative goal would
contribute to [its ameliorative] purpose”: Kapp, at para. 49.
(a) The Program
Recognizes the Historic Uniqueness of the Métis
[75]
The object of the MSA, as we have seen,
is to promote Métis identity, culture and self-governance in recognition of
their unique status — aboriginal, yet neither Indian nor Inuit. This object
corresponds to historic differences between the Métis and Indians. Since their
emergence as a distinct people on the Canadian prairies in the 1700s, the Métis
have claimed an identity based on non-Indianness. They have persistently
distinguished themselves as a people from the other dominant Aboriginal group
in their territory — Indians. The obverse side of the struggle of the Métis to
preserve their distinct identity and culture is the fear that overlap and
confusion with the larger Indian cultures would put their identity and culture
at risk. The right of the Métis to their own non-Indian culture is confirmed
by the Constitution Act, 1982, s. 35 . Line drawing on this basis, far
from being irrational, simply reflects the Constitution and serves the
legitimate expectations of the Métis.
[76]
The distinction in the MSA between Métis
and status Indians conforms, in general terms, to the different identities and
protections enjoyed by each group and recognized in the Constitution. It thus
serves to enhance Métis identity and to further the goal of the ameliorative
program. The fact that some people may identify as both Métis and Indian does
not negate the general correspondence underlying the distinction between the
two groups.
(b) Realizing the
Object of the Program
[77]
To accord membership in the MSA
communities to Métis who are also status Indians would undermine the object of
the program of enhancing Métis identity, culture and governance, and would potentially
hollow out the goal of the MSA of preserving and enhancing a distinct
Métis culture, identity and governance.
[78]
Extending membership to significant numbers of
people with Indian status may undercut the goals of preserving and enhancing
the distinctive Métis culture, identity and self-governance into the future.
To the extent that status Indians are members of Métis settlements, the
distinctive Métis identity, with its historic emphasis on being distinct from
Indian identity, would be compromised. And to the extent that status Indians
are members of Métis settlements, the goal of self-governance is hampered. For
example, Indians who already enjoy the right to hunt off-reserve may have
little interest in promoting the right of Métis to hunt outside settlement
lands. The same may be ventured for other benefits and privileges. Because
the Indian Act provides a scheme of benefits to status Indians, ranging
from medical care to housing to tax-free status, status Indian members of Métis
settlements may have less interest in fighting for similar benefits than Métis
without Indian status.
(c) The Role of the
Métis in Defining Their Community
[79]
The exclusion of status Indians from membership
in the new land-based Métis settlements was the product of a long period of
consultation between the government and the Métis. According a measure of
respect to this role serves and advances the object of the ameliorative
program. It does not insulate the selection of beneficiaries from Charter
review, to be sure, but it supports the connection between the object of the
program and the means chosen to achieve it.
[80]
In R. v. Powley, 2003 SCC 43,
[2003] 2 S.C.R. 207, this Court was seized with the task of developing a test
for identifying Métis aboriginal rights under s. 35 of the Constitution Act,
1982 , and identifying the holders of such rights. We recognized that the
term “Métis” used in s. 35 “refers to distinctive peoples who, in addition to
their mixed ancestry, developed their own customs, way of life, and
recognizable group identity separate from their Indian or Inuit and European forebears”
(para. 10; see also para. 11). We further held that “[t]he inclusion of the
Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing
their survival as distinctive communities” (para. 13).
[81]
While this case is not about defining
entitlement to s. 35 rights, it is about the identification of membership
requirements for Métis settlements for the purpose of establishing a Métis land
base. The Court’s reasons in Powley suggest that Métis communities
themselves have a significant role to play in this exercise. We wrote, at
para. 29:
As
Métis communities continue to organize themselves more formally and to assert
their constitutional rights, it is imperative that membership requirements
become more standardized so that legitimate rights-holders can be identified.
[82]
The self-organization and standardization of the
Métis community in Alberta is precisely what the Alberta legislature and the
Alberta Métis have together sought to achieve in developing, agreeing upon and
enacting the membership requirements found in the MSA and challenged
here. The significant role that the Métis must play in defining settlement
membership requirements does not mean that this exercise is exempt from Charter
scrutiny. Nevertheless, it does suggest that the courts must approach the task
of reviewing membership requirements with prudence and due regard to the Métis’s
own conception of the distinct features of their community.
(d) Conclusion: The Distinction Serves and
Advances the Object of the Ameliorative Program
[83]
I conclude that the exclusion from membership in
any Métis settlement, including the Peavine Settlement, of Métis who are also
status Indians serves and advances the object of the ameliorative program. It
corresponds to the historic and social distinction between the Métis and
Indians, furthers realization of the object of enhancing Métis identity,
culture and governance, and respects the role of the Métis in defining
themselves as a people.
[84]
It follows that the distinction between Métis
and status Indians in the MSA does not fall outside the protective reach
of s. 15(2) . Rather, the distinction is the type of targeted ameliorative
program s. 15 was intended to allow legislatures to adopt. Section 15(2)
applies, and the exclusion of the claimants from membership in a Métis settlement
does not constitute discrimination.
[85]
The argument advanced by the claimants in favour
of recognition of the multiple identities of many aboriginal individuals does
not undermine this conclusion. The claimants argue that people — particularly
Aboriginal people — may, for historical reasons, have multiple identities and
that the law should respect those identities in all their complexity.
[86]
That people, including many Métis, include mixed
ethnic and cultural strands in their particular individual identity is clear.
However, this does not mean that every program must recognize everyone who
holds some claim to a group targeted by an ameliorative program. Mixed
identity is a recurrent theme in Canada’s ongoing exercise of achieving
reconciliation between its Aboriginal peoples and the broader population. It
figures, for example, in land claims negotiations between particular Indian
groups and the government. Residents of one Indian group frequently also
identify themselves with other Indian groups for historical and cultural
reasons. Yet lines must be drawn if agreements are to be achieved. The
situation of Métis settlements is similar. In order to preserve the unique
Métis culture and identity and to assure effective self-governance through a
dedicated Métis land base, some line drawing will be required. It follows of
necessity that not every person who is a Métis in the broad sense of having Indian-European
ancestry and self-identifying with the Métis community, as discussed in
Powley, may be entitled to the benefit of membership under the MSA.
[87]
The conclusion of this Court in Lovelace,
per Iacobucci J., is apposite:
There
are important differences among First Nations bands, Métis communities and
non-band First Nations, and as stated by L’Heureux-Dubé J. in Corbiere,
supra, at para. 94, “[t]aking into account, recognizing, and affirming
differences between groups in a manner that respects and values their dignity
and difference are not only legitimate, but necessary considerations in
ensuring that substantive equality is present in Canadian society.” [para. 90]
[88]
I conclude that the MSA is an
ameliorative program protected by s. 15(2) of the Charter . It follows
that the claimants’ s. 15 claim must be dismissed.
V. The Freedom of Association Claim Under Section 2(d)
of the Charter
[89]
Freedom of association is guaranteed by s. 2 (d)
of the Charter , which holds:
2. Everyone
has the following fundamental freedoms:
. . .
(d) freedom
of association.
[90]
The claimants assert that ss. 75 and 90 of the MSA,
which prevent the reinstatement of their membership in the Peavine Métis Settlement,
interfere with their freedom of association under s. 2 (d) of the Charter .
[91]
The record does not provide an adequate basis to
assess the claimants’ s. 2 (d) argument. As noted by the Alberta
Court of Appeal, at para. 57:
A substantial body of proof was not
before the chambers judge on this issue and, more troubling, at the hearing
before the chambers judge this issue was only argued in the most oblique terms.
I conclude that, on the record before us, no viable claim has been
raised under s. 2 (d) of the Charter .
VI. The Right to Liberty Claim Under Section 7 of the Charter
[92]
The claimants’ right to reside on the Peavine
settlement, though not eliminated, has been circumscribed. They could, in
future, find themselves excluded from residence on the settlement. The
claimants allege that this violates their right to liberty under s. 7 of the Charter ,
which provides:
7. Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
[93]
It is not clear that place of residence is a
protected liberty interest under s. 7 of the Charter . In Godbout
v. Longueuil (City), [1997] 3 S.C.R. 844, La Forest J., writing for himself
and two other members of the Court, suggested that it was, but the issue
remains unsettled.
[94]
It is not necessary to decide whether place of
residence is protected by s. 7 because, as found by the chambers judge,
any impact on liberty has not been shown to be contrary to the principles of
fundamental justice, as required for a s. 7 claim. The deprivation is neither
arbitrary nor grossly disproportionate, for the reasons discussed in connection
with the s. 15 claim. As the chambers judge put it, “[r]equiring aboriginal
adults who might otherwise meet the definition of both Indian and Métis to
choose which legislative scheme they wish to fall under — the Indian Act or
the MSA — is not a requirement which is grossly disproportionate to the
interest of Alberta in securing a land base for the Métis” (para. 130).
[95]
The s. 7 claim therefore fails.
VII. Conclusion
[96]
I would allow the appeal, set aside the decision of the
Court of Appeal and affirm the decision of the chambers judge. The appellants
have not sought their costs before this Court, so I would not award them. I
would answer the constitutional questions as follows:
1. Do
ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14,
infringe s. 2 (d) of the Canadian Charter of Rights and Freedoms ?
The record does not provide an adequate basis to assess the claimants’
s. 2 (d) argument and the Court therefore declines to answer this
question.
2. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary to answer this question.
3. Do
ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14,
infringe s. 7 of the Canadian Charter of Rights and Freedoms ?
No.
4. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary to answer this question.
5. Do
ss. 75 and/or 90 of the Metis Settlements Act, R.S.A. 2000, c. M-14,
infringe s. 15 of the Canadian Charter of Rights and Freedoms ?
No.
6. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary to answer this question.
Appeal
allowed.
Solicitor
for the appellants: Attorney General of Alberta, Edmonton.
Solicitors
for the respondents: Field, Edmonton.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.
Solicitor
for the intervener the Attorney General of Quebec: Attorney General
of Quebec, Sainte‑Foy.
Solicitor
for the intervener the Attorney General for Saskatchewan: Attorney
General for Saskatchewan, Regina.
Solicitors
for the intervener the East Prairie Métis Settlement: Hajduk Gibbs,
Edmonton.
Solicitors
for the intervener the Elizabeth Métis Settlement: Owen Law,
Edmonton.
Solicitors
for the intervener the Métis Nation of Alberta: Pape Salter Teillet,
Vancouver.
Solicitors
for the intervener the Métis National Council: JTM Law, Toronto.
Solicitors
for the intervener the Métis Settlements General Council: Witten,
Edmonton.
Solicitor
for the intervener the Aboriginal Legal Services of Toronto
Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.
Solicitor
for the intervener the Women’s Legal Education and Action
Fund: Women’s Legal Education and Action Fund, Toronto.
Solicitor
for the intervener the Canadian Association for Community
Living: ARCH Disability Law Centre, Toronto.
Solicitors
for the intervener the Gift Lake Métis Settlement: Field, Edmonton.
Solicitor for the intervener the Native Women’s
Association of Canada: Law Office of Mary Eberts, Toronto.