Date: 20000524
Docket: A-850-97
CORAM: STONE J.A.
BETWEEN:
CHIEF AND COUNCIL OF THE SHUBENACADIE INDIAN BAND
Appellant
-and-
CANADIAN HUMAN RIGHTS COMMISSION
-and-
DARLENE MACNUTT, LOLITA KNOCKWOOD, JOHN B. PICTOU, JR.
-and-
ATTORNEY GENERAL OF CANADA, REPRESENTING THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondents
Heard at Halifax, Nova Scotia on December 1, 1999.
Judgment delivered at Ottawa, Ontario on Wednesday, May 24, 2000.
REASONS FOR JUDGMENT BY: ISAAC J.A.
CONCURRED IN BY: STONE J.A.
SEXTON J.A.
Date: 20000524
Docket: A-850-97
CORAM: STONE J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
CHIEF AND COUNCIL OF THE SHUBENACADIE INDIAN BAND
Appellant
-and-
CANADIAN HUMAN RIGHTS COMMISSION
-and-
DARLENE MACNUTT, LOLITA KNOCKWOOD, JOHN B. PICTOU, JR.
-and-
ATTORNEY GENERAL OF CANADA, REPRESENTING THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondents
REASONS FOR JUDGMENT
ISAAC J.A.
[1] This is an appeal from an order made by a Motions Judge in the Trial Division on 30 October 1997. In that order, the learned Motions Judge dismissed the appellant's application for judicial review of the decision of a Canadian Human Rights Tribunal ("the Tribunal"), dated 11 October 1995. The Tribunal found that the appellant had discriminated against the three named respondents, the complainants before the Tribunal, on the grounds of race and martial status, contrary to section 5 of the Canadian Human Rights Act1 ("CHRA"). The decision of the Trial Division is reported at [1998] 2 F.C. 198.
FACTS
[2] The underlying facts are fully set out in the reported decision and, as appears from the report, they were thoroughly canvassed by the Tribunal and by the Motions Judge. Consequently, I do not find it necessary to embark upon a recitation of the facts here. However, in order to facilitate analysis, I will emphasize below certain facts.
[3] During the years 1987 to 1996, the appellant Council entered into Annual Contribution Agreements ("the Agreements"), and Master Funding Agreements with the Department of Indian Affairs and Northern Development ("DIAND"). In these Agreements, the appellant Council contracted to deliver social assistance programmes on the terms and conditions set out in the Native Community Services Guidelines, Policies and Procedures for New Brunswick and Nova Scotia ("the Guidelines").
[4] In the administration and management of the programmes contemplated by the Agreements, including the social assistance programmes, the appellant is answerable to the Minister of Indian Affairs and Northern Development ("the Minister"). In turn, the Minister is accountable to Parliament.
[5] Parliament enacted the Canada Assistance Plan ("CAP") which provided for cost-sharing with the provinces, income maintenance programmes. The preamble to the Act reads:
| WHEREAS the Parliament of Canada, recognizing that the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians, is desirous of encouraging the further development and extension of assistance and welfare services programs throughout Canada by sharing more fully with the provinces in the cost thereof;2 |
[6] Part II of the CAP is entitled "Indian Welfare". Subsection 11(2), found in Part II, authorizes the Minister of Human Resources and the Minister responsible for DIAND, with the approval of the Governor in Council, to enter into agreements with a province to extend provincial welfare payments to Indians ordinarily resident with the band on reserves, with the consent of the Council of the Band.
[7] Section 13 provides that where no such agreement is in effect, a province is not required to provide, pursuant to a general welfare agreement between the Minister and a province under Part I of the CAP, social assistance to Indians ordinarily resident on reserves.
[8] The province of Nova Scotia has not entered into any agreement under Part II of the CAP.
[9] Apart from the CAP, Parliament has not enacted legislation to provide expressly for social assistance to Indians and their families ordinarily resident on Indian reserves. Since 1964, however, the Treasury Board has developed a policy which authorizes DIAND to provide social assistance to Indians. This is how the matter is expressed, in part, in a document entitled Background of the Development of the Social Assistance Program:
| The federal Government has a general responsibility to Indians as a result of Section 91 of the British North America Act which gives Canada legislative jurisdiction over the Indians and land reserved for Indians. |
| Section 88 of the Indian Act, provides that subject to the terms of any treaty or any other act of parliament, all provincial laws of general application apply to Indians except to the extent that they are inconsistent with the Indian Act. |
| Prior to 1964, the Indian Affairs Branch of the Department of Citizenship and Immigration administered a Welfare Assistance Program using national benefit structures and rates. Schedules for food allowances were established by the Department of National Health and Welfare. Bands with resources were required to set aside a portion of their revenue funds from trust accounts to meet the cost of welfare assistance and funeral costs to band members in need. Problems of inequity occurred between services to Indians on reserve and off reserve and between Indian and non-Indian people. |
| Treasury Board Minute Number 627879 dated July 16, 1964, authorized the Department of Indian Affairs and Northern Development to adopt provincial and municipal welfare assistance rates and conditions in the administration of welfare to Indians. |
| "Welfare", in 1964, was interpreted in conventional ways and corresponds to municipal welfare assistance, provincial general assistance, social aid, etc. At that time, most provincial governments administered categorical assistance programs such as Blind Person's Allowance, Disabled Pension Allowance, and Old Age Assistance programs and these were cost-shared with the federal government. Some provinces administered and funded Mother's Allowances and extended the latter benefits to Indian People residing on reserves. |
| The department then ceased requiring Indian bands to use their funds to meet the cost of Social Assistance and additional funds were then available to bands for community infrastructure, economic development, etc. |
| In 1966, the Canada Assistance Plan was passed by the Government of Canada. This act provided for cost-sharing of income maintenance programs. In order to qualify for cost-sharing with the Government of Canada, provinces abolished their categorical assistance program and general assistance program were implemented. |
| Under Part II of the Canada Assistance Plan, there is provision to provide services to Treaty Indians living on reserves. No province has to date signed a Part II agreement and the department has continued to administer the Social Assistance program under the Treasury Board Minute 627879 which defines welfare in a much narrower sense than the definition of assistance contained in the Canada Assistance Plan. |
| The national office of D.I.A.N.D. provides regional offices with guidelines or direction in determining components of comprehensive provincial income maintenance programs to be adapted as components of its Social Assistance program. Some portions of provincial government programs (rate schedules) are adopted more readily than others (benefit Programs). |
| Because there is no specific legislation providing for the Social Assistance program under D.I.A.N.D., other than that provided by the Treasury Board Minute 627879, the service provided remains limited. Inequities occur in the broader sense in such areas as child protection services, child care, day care and home care.3 |
[10] The appellant Council has no authority to make by-laws respecting the payment of social assistance to persons resident on the reserve.
[11] The social assistance programme, of which the Guidelines speak, has application only to persons residing on Indian reserves, being those "persons living on Indian reserves or who are resident on land the legal title to which is vested in Her Majesty in the right of Canada."4. It is intended primarily for the benefit of Indian people and their families, including dependents, which is defined as follows:
| "Dependent" means the spouse or a person living with an applicant or recipient as a spouse, or any person under 18 years of age...5 |
[12] Under the Guidelines, an application for social assistance is submitted by the "head of the family" on behalf of all dependents, including the spouse. There is no requirement that the "dependent" must be a registered Indian6.
[13] The Guidelines further authorize the provision of social assistance to certain categories of non-Indians resident on a reserve7.
[14] The respondent, Darlene MacNutt ("MacNutt"), a registered Indian and a member of the Shubenacadie Indian Band ("the Band") is married to Gordon MacNutt, a non-Indian person. Together, with their children, they have been living on the Shubenacadie Indian Reserve ("the Reserve"), in the province of Nova Scotia, since at least 24 April 1987 when they were married.
[15] In 1987 and in each succeeding year to 1991, MacNutt applied to the Social Assistance Administration of the Band for social assistance. She included in each application, as dependents, her children and her non-Indian husband. In each year, the appellant authorized the payment of social assistance for her and her children; but, they refused payment for her husband.
[16] On 26 August 1991, MacNutt appealed the refusal to an Appeal Board established under the Guidelines. The Appeal Board decided that MacNutt's husband should be included in the family budget and that social assistance should be paid in accordance with the Guidelines. The appellant refused to accept and to pay in accordance with the decision of the Appeal Board.
[17] In August 1991, MacNutt filed a complaint with the Canadian Human Rights Commission ("the Commission"), alleging that the appellant's refusal to permit the inclusion of her non-Indian husband in her social assistance family budget payments amounted to discrimination on the basis of marital status and sex.
[18] For his part, Gordon MacNutt, applied for social assistance to the Municipality of East Hants, in the province of Nova Scotia, in which the Reserve is situated. However, he was refused social assistance because he was resident on the Reserve. He appealed the refusal to the Appeal Board of the Nova Scotia Department of Community Services. The Appeal Board dismissed his appeal.
[19] John B. Pictou Jr. ("Pictou"), a registered Indian, is a member of the Band. He married Christine Pictou, a non-Indian, on 29 July 1990, on the Reserve. Together with their children, they have been living on the Reserve since 1990.
[20] In July 1990, and again in 1991, Pictou applied for social assistance from the appellant Council. In his application, he included his children and wife as dependents.
[21] He received social assistance for his non-Indian wife and their children in both years.
[22] In April 1992, the appellant decided to discontinue social assistance payments to Indian persons for their non-Indian spouses. As a result, from May 1992 to the present, the appellants have refused to pay social assistance to Pictou for his non-Indian wife.
[23] Pictou filed a complaint with the Commission alleging against the appellant's discrimination on the grounds of marital status.
[24] Lolita Knockwood is a non-Indian person. She married Garfield Knockwood ("Knockwood"), a registered Indian and member of the Band and resident of the Reserve, on 24 August 1985. Subsequent to the marriage, they continued to reside on the Reserve. Knockwood applied for social assistance for himself and his wife after their marriage and on each occasion, he received payments for both of them until May 1992 when payment for his non-Indian wife was refused.
[25] Like MacNutt, Pictou and Knockwood appealed successfully the appellant's refusal of social assistance for the respective non-Indian spouses to the Appeal Board established under the Guidelines, but from 1992 to the present, the appellant has refused and continues to refuse to pay social assistance in respect of the three non-Indian spouses and to act in accordance with decisions of the Appeal Board.
[26] On 24 November 1992, Lolita Knockwood filed a complaint with the Commission alleging, against the appellant, discrimination on the grounds of national or ethnic origin, marital status and race.
[27] DIAND specifically undertook to reimburse the appellant Council for any payments for basic social assistance made by the Council to Indian Band members on behalf of non-Indians on reserve and, in fact, did reimburse the appellant Council for such payments made to John Pictou and Garfield Knockwood, prior to May 1992 in respect of their respective non-Indian spouses.
[28] In due course, the Commission appointed the Tribunal to hear the complaints and the Tribunal made the decision which gave rise to this appeal.
DECISION OF THE TRIBUNAL
[29] The Tribunal had before it for hearing the three complaints filed by the named respondents. However, a complaint filed by James S. Pictou II, the brother of John B. Pictou Jr., who also lives on the Reserve, was, by agreement of all parties appearing before the Tribunal, adjourned sine die. The remaining complaints were heard together.
[30] At the conclusion of the hearing, the Tribunal found that the complainants had made out their respective cases of discrimination, contrary to section 5 of the CHRA and it made the following order:
| 1. that the appellant cease the discriminatory practice of denying social assistance benefits to non-Indian spouses of Indians resident on the Reserve; |
| 2. that retroactive to 22 March 1991, the appellant shall include in the social assistance budget of MacNutt, social assistance for her husband Gordon MacNutt; |
| 3. that the appellant should provide for the social assistance of Lolita Knockwood and Christine Pictou from the date of their respective appeals to the Appeal Board constituted under the Guidelines, i.e., 14 May 1992; |
| 4. that the amount of $11,675.66 to which MacNutt would have been entitled to receive be set off against the sum of $17,514.15 that she owes to the Band, and that the appellant pay, in respect of MacNutt, social assistance benefits for her husband, Gordon MacNutt, from and after the date when there would be an equitable set-off; |
| 5. that the appellant pay to Lolita Knockwood, the sum of $5,196.80 together with such further regular social assistance benefits to which she would be entitled from 11 October 1994 to the date of the order, i.e., 11 October 1995; |
| 6. that the appellant pay to Pictou, the sum of $5,565.07 together with the other social assistance benefits to which he would have been entitled after 11 October 1994; and |
| 7. that because the decision of the appellant to refuse payments in respect of the three complainants was wilful and all complainants have suffered in respect of feelings of self-respect as a result of the appellant's conduct, pursuant to subsection 53(3) of the CHRA the appellant shall pay damages as follows: |
| Darlene MacNutt $5,000.00 |
| Lolita Knockwood $1,500.00 |
| John B. Pictou Jr. $1,000.00 |
| together with simple interest at the rate of 5% per annum, retroactive to 13 May 1987 for MacNutt and to 14 May 1992 for Knockwood and Pictou.8 |
JUDGMENT IN THE TRIAL DIVISION
[31] As I have already said, the appellant applied to the Trial Division for judicial review of the decision of the Tribunal. The application was heard by a Motions Judge who dismissed it on 30 October 1997.
[32] In rejecting the appellant's contentions, the Motions Judge concluded:
| a) that non-Indian spouses living on the Reserve are members of the "general public" for the purposes of section 5 of the CHRA; |
| b) that section 67 of the CHRA did not protect the decision of the appellant Council on eligibility for social assistance from human rights review, because the decision was not authorized under the Indian Act; |
| c) that, based on the evidence before it, the tribunal was entitled to find that there was no bona fide justification for the denial of the claims made on behalf of the complainants; |
| d) that the Tribunal had jurisdiction to entertain the complaints of violation of section 5 of the CHRA because the contract to provide social assistance between DIAND and the appellant was within the legislative authority of Parliament by virtue of the federal spending power; |
| e) that section 25 of the Canadian Charter of Rights and Freedoms9 ("the Charter") is not independently enforceable but acts as a shield to protect aboriginal, treaty and other rights from being adversely affected by the Charter; |
| f) that the right to administer a welfare program funded by the government does not derive from any aboriginal treaty or any other right or freedom that pertains to the aboriginal peoples of Canada and therefore section 25 of the Charter is not engaged; and |
| g) In, obiter, the Motions Judge also decided that subsection 16(1) of the CHRA was of no assistance to the appellant because, in his view, non-Indian spouses residing on the Reserve were specifically mentioned by subsection 3.01(2) of the Guidelines as potential recipients of social assistance.10 |
RELEVANT LEGISLATION
[33] The relevant provisions of the CHRA read:
| 2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual,or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
|
2. La présente loi a pour objet de compléter la législation canadienne en donnant effet, dans le champ de compétence du Parlement du Canada, au principe suivant : le droit de tous les individus, dans la mesure compatible avec leurs devoirs et obligations au sein de la société, à l'égalité des chances d'épanouissement et à la prise de mesures visant à la satisfaction de leurs besoins, indépendamment des considérations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, l'âge, le sexe, l'orientation sexuelle, l'état matrimonial, la situation de famille, la déficience ou l'état de personne graciée.
5. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, pour le fournisseur de biens, de services, d'installations ou de moyens d'hébergement destinés au public :
a) d'en priver un individu;
b) de le défavoriser à l'occasion de leur fourniture.
|
[Emphasis added.]
| 16. (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be or are based on or related to the race, national or ethnic origin, colour, religion, age, sex, marital status, family status or disability of members of that group, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.
|
16.(1) Ne constitue pas un acte discriminatoire le fait d'adopter ou de mettre en oeuvre des programmes, des plans ou des arrangements spéciaux destinés à supprimer, diminuer ou prévenir les désavantages que subit ou peut vraisemblablement subir un groupe d'individus pour des motifs fondés, directement ou indirectement, sur leur race, leur origine nationale ou ethnique, leur couleur, leur religion, leur âge, leur sexe, leur état matrimonial, leur situation de famille ou leur déficience en améliorant leurs chances d'emploi ou d'avancement ou en leur facilitant l'accès à des biens, à des services, à des installations ou à des moyens d'hébergement.
|
[34] As it relates to the authority of Parliament to deal with Indians, and the authority of provincial legislatures to deal with social assistance, the Constitution Act, 186711 reads:
| 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,...
.....
24. Indians, and Lands reserved for the Indians.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
...
13. Property and Civil Rights in the Province.
...
16. Generally all Matters of a merely local or private Nature in the Province.
|
91. Il sera loisible à la Reine, de l'avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l'ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l'autorité législative exclusive du parlement du Canada s'étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir:
.....
24. Les Indiens et les terres réservées pour les Indiens.
92. Dans chaque province la législature pourra exclusivement faire des lois relatives aux matières tombant dans les catégories de sujets ci-dessous énumérés, savoir:
...
13. La propriété et les droits civils dans la province;
...
16. Généralement toutes les matières d'une nature purement locale ou privée dans la province.
|
[35] As it relates to the authority of Parliament to fund social assistance programmes on Indian reserves, the so called federal spending power, the Constitution Act, 186712, reads:
| 91...
1A. The Public Debt and Property.
....
3. The raising of Money by any Mode or System of Taxation.
106. Subject to the several Payments by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service.
|
91...
1A. La dette et la propriété publiques.
....
3. Le prélèvement de deniers par tous modes ou systèmes de taxation.
106. Sujet aux différents paiements dont est grevé par la présente loi le fonds consolidé de revenu du Canada, ce fonds sera approprié par le parlement du Canada au service public.
|
[36] Sections 15 and 25 of the Charter read:
| 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.
15. (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.
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
|
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
15. (2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques.
25. Le fait que la présente charte garantit certains droits et libertés ne porte pas atteinte aux droits ou libertés " ancestraux, issus de traités ou autres " des peuples autochtones du Canada, notamment :
a) aux droits ou libertés reconnus par la proclamation royale du 7 octobre 1763;
b) aux droits ou libertés existants issus d'accords sur des revendications territoriales ou ceux susceptibles d'être ainsi acquis.
|
ISSUES
[37] In his memorandum of fact and law and in the oral argument of its counsel, the appellant raised the following issues:
| a) Does the Tribunal have the authority under section 2 of the CHRA to make the order that it did? |
| b) Does the decision of the Chief and Council to deny benefits to non-Indian spouses fall within the exception provided by section 67 of the CHRA? |
| c) Did the Tribunal err in defining the relevant "public" according to section 5 of the CHRA? |
| d) Is the CHRA of no force and effect because of the combined effect of sections 15 and 25 of the Charter? |
| e) Is the band engaging in affirmative action as provided by section 15(2) of the Charter? |
| f) If a non-Indian does not have a ministerial permit to live on the Reserve, may he or she still assert a right based on reserve residency? |
[38] At the conclusion of argument by counsel for the appellant, the Court decided to hear argument from counsel for the respondents on the first, fourth and fifth issues only, because, the Court was of the view that it did not require the assistance of counsel for the respondents with respect to any of the remaining issues. In my respectful view, for the reasons given by the Motions Judge, the other issues are without merit.
[39] I will therefore confine my analysis to these three issues only.
ANALYSIS
[40] I will deal and dispose of the fourth and fifth issues before dealing with the first.
[41] In respect of the fourth issue, the appellant contends that, if this Court should conclude that section 5 of the CHRA applies to it and that the Tribunal had jurisdiction to hear and determine the complaints, then section 5 of the CHRA is inconsistent with subsection 15(1) of the Charter as interpreted in light of section 25 of the Charter and is therefore of no force and effect.
[42] The appellant's argument on this issue is difficult to follow and, in my judgment, it is wholly devoid of merit. The substance of the argument is found in paragraphs 52, 53, and 54 of his memorandum of fact and law, which I reproduce hereunder for ease of reference:
| 52. Professor Pentney also dealt with the meaning of "other rights or freedoms the [sic] pertain to the aboriginal peoples", beginning at p. 55. He noted that the "special or unique rights which are protected by this reference in s. 25 can be divided into two broad categories: constitutional, and statutory or common law." He fleshed out the latter category at p. 56: |
| Various statutory or common law rights or freedoms that pertain to aboriginal peoples naturally fall within the scope of the phrase "other rights or freedoms" in s. 25. The most important statutory source of these rights is the Indian Act, although other examples of unique statutory rights pertaining to aboriginal people are easily found [citing the Northwest Territories Fishing Regulations]. |
| In footnote 130 at p. 56, Professor Pentney gave as an example of a common law right that pertains to Aboriginal people: "customary marriage and adoption." |
| 53. What Professor Pentney's analysis demonstrates, in our submission, is that, to whichever source you turn, to explain the Band's legal existence and ability to contract, to receive delegated authority, and to administer a social assistance program, be it the Indian Act, an inherent Aboriginal sovereignty based on Aboriginal or treaty rights, or common law recognition, Band government is a special or unique right or freedom the [sic] pertains only to Aboriginal people. And the actual exercise of the right in the case at bar is directed toward maintaining Aboriginal difference. As such the power and its exercise enjoy the protection of s. 25. And s. 25 requires that s. 15 be understood through the prism of s. 25, i.e., that normal notions of equality be adjusted to protect the right or freedom of the Band to govern for Indian people. To the extent that the CHRA does not do this, it is inconsistent with the constitutional requirements of s. 15, as interpreted through the "prism" of s. 25. |
| 54. It bears emphasis that all parties accept the rights, status, capacity, and authority of the Chief and Council of the Shubenacadie Indian Band, sitting as the government of the Band, to administer a social assistance program. This Honourable Court noted in Batchewana, supra, at para. 5: "The function of the chief and the band council generally is to manage affairs on the reserve and to make decisions concerning the land and money of the band, subject to the authorization of the Minister of Indian Affairs and Northern Development (the Minister)." The members of the Band through their elected chief and council have the unique legal capacity to govern themselves. The legal ability to operate such a unique form of government is without question a "right or freedom that pertains to the Aboriginal people of Canada. As such, it enjoys the protection of s. 25 of the Charter. This "shield" protects the Band from the levelling effect of notions of equality, embodied in s. 15(1) of the Charter of Rights, and in the CHRA. To maintain Aboriginal difference was the whole point of s. 25. To provide protection in a case like the one at bar was the central mission of s. 25. How ironic that if it now fails in that essential task. |
[43] In my view, the answer to the appellant's contention is three-fold. First, section 25 of the Charter has been held to be a shield which protects the rights mentioned therein from being adversely affected by other Charter rights. This Court explained the purpose of that section in Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al.:
| The function of s. 25 is different from that of s. 35(1) because it is not independently enforceable. Rather, its role is to act "as a shield which protects aboriginal, treaty and other rights from being adversely affected by other Charter rights". [See footnote 35]. If the right to limit voting to on-reserve members of the Band were recognized as an aboriginal right under s. 35(1), then s. 25 would operate to ensure that the right was not weakened by the operation of s. 15(1). [See footnote 36]. We have found, however, that such a right was not established.13 |
The section can only be invoked as a defence if it had been found that the appellant's conduct had violated subsection 15(1) of the Charter. This is not the case here.
[44] Second, the named respondents have complained that the appellant's refusal to pay social assistance to them is a contravention of section 5 of the CHRA. Since they did not allege that the appellant had violated section 15 of the Charter, section 25 of the Charter has no application here. Third, the appellant has not established by evidence the unique right which they are asserting and which they say is included in section 25.
[45] What the evidence discloses is that under the Master Funding Agreement the appellant accepted an obligation to distribute eleemosynary payments from the Government of Canada in accordance with the terms of the Agreement and the Guidelines. In my view, it is difficult to understand how this obligation could, by the mere affluxion of time, have hardened into a constitutional right protected by section 25.
[46] The Tribunal found:
| ... the Chief and Council of the Shubenacadie Indian Band do not have the discretion to refuse to pay social assistance benefits to qualified non-natives on Reserve once they have signed the Master Funding Arrangement. The MFA requires the Band's adherence to the guidelines incorporated by reference into the Master Funding Arrangement and these guidelines themselves require "equitable treatment of all Reserve residents"14. |
| [Emphasis in the original.] |
The appellant does not dispute this finding.
[47] As regards the fifth issue, namely, whether the conduct of the appellant constitutes affirmative action within the meaning of subsection 15(2) of the Charter, I can only say that the issue assumes that a subsection 15(1) violation has been found. I have already stated that no such violation has been alleged or found. Consequently, it is my respectful view that this issue is misguided and also wholly devoid of merit.
[48] I pass now to the appellant's contention on the first issue, namely, that the Tribunal has no authority under section 2 of the CHRA to make the order that it did.
[49] The Motions Judge answered this question in the affirmative. He concluded, first, that irrespective of whether the provision of social assistance to non-Indians residing on the Reserve is a matter within federal or provincial legislative authority, federal spending on social assistance in this case is within the legislative authority of Parliament and consequently, section 2 of the CHRA applies to ground the jurisdiction of the Tribunal. He concluded, second, that the jurisdiction of the Tribunal over the distribution by the Band Council of funds for social assistance was not "regulation" of a provincial matter, since the Band Council is a statutory body constituted by Parliament under the Indian Act, and is subject to the CHRA unless Parliament provides otherwise. In this case, Parliament did not otherwise provide.
[50] On this issue, the appellant contends that the Tribunal was without jurisdiction to make the order that it did in this case.
[51] This is how the argument goes. Social assistance is a matter falling within provincial legislative authority under sections 92(13) and 92(16) of the Constitution Act, 1867; consequently, the legislative authority of Parliament cannot extend to embrace it. It follows then that section 2 of the CHRA has no application to the facts of the case and therefore the Commission had no authority to entertain the complaint and the Tribunal no constitutional jurisdiction to make an order directing the payment of social assistance to non-Indians.
[52] The appellant contends further that the want of jurisdiction in the Tribunal arises for the following reasons: first, since the persons to whom social assistance was denied are all non-Indians, the legislative authority of Parliament does not extend to them; and, second, since social assistance to non-Indian residents on reserve is a legislative subject matter falling within provincial authority, Parliament has no constitutional authority to use its "so called" spending power to provide social assistance to non-Indians living on the Reserve.
[53] On this issue, the respondent, Attorney General of Canada, based on the decision of the Supreme Court of Canada in YMHA Jewish Community Centre of Winnipeg Inc. v. Brown15 and Reference Re Canada Assistance Plan (B.C.)16 contends that Parliament could use its spending power to finance matters in respect of which it had no constitutional jurisdiction to legislate. Thus, even if, as the appellant contends, the social assistance in this case was a matter within provincial jurisdiction, the provision of social assistance here could, constitutionally, be supported under Parliament's spending power.
[54] For their part, the respondent Commission and the named respondents, contend that the Commission did have the jurisdiction to entertain and the Tribunal to hear and dispose of the complaints in this case, because the provision of social assistance in this case is supported either under section 91(24) of the Constitution Act, 1867, or the federal spending power. In either case, they argue, the social assistance in issue here was intended primarily for the benefit of Indians living on reserves and their dependents. The fact that in some instances some dependants were non-Indians does not detract from the essential Indianness of the programme. Consequently the appellant's refusal of social assistance in respect of the non-Indian spouses in this case is a matter over which Parliament has authority within the meaning of section 2 of the CHRA. The Commission, therefore, had the authority to entertain and the Tribunal to hear and dispose of the complaints of violation of section 5 of the CHRA.
[55] The Motions Judge rested his decision on the spending power; but, for the reasons that follow, I would prefer to rest my conclusion that the Tribunal had authority to hear and dispose of the complaints under section 5 of the CHRA on the basis of the authority given to Parliament in subsection 91(24) of the Constitution Act, 1867.
[56] It is clear from the document entitled Background of the Development of the Social Assistance Program, which I have earlier reproduced, that the Government of Canada through the Treasury Board Ministers, decided in 1964 to provide social assistance to Indians living on reserve and to their families. That this was done in discharge of the constitutional responsibilities is expressed in that document. That the programme was designed to enhance the status of the Indian people and their families is also beyond question.
[57] The evidence demonstrates that, on the authority of the relevant Treasury Board Minute, DIAND entered into Master Funding Agreements and prepared the Agreements which govern the distribution of the social assistance benefits which is funded wholly by the Government of Canada.
[58] Moreover, in this appeal, each of the applicants for social assistance is a status Indian and a member of the Band. They received benefits for themselves and their children; but, were refused for their non-Indian spouses who resided with them on the Reserve. In my respectful view, the refusal to pay benefits to Indian applicants in respect of non-Indian spouses cannot transform what is in fact a programme designed to enhance the status of Indian peoples (a matter within the constitutional competence of Parliament) into a matter within provincial competence, simply because non-Indian spouses are involved.
[59] It bears emphasizing that the programme is designed for the benefit of Indians. Only Indians who are members of the Band and are normally resident on the Reserve are entitled to apply for benefits for themselves and their dependents who must also normally reside on the Reserve.
[60] It follows, in my judgment, that a programme designed to promote Indianness and limited territorially to the Reserve is one that is constitutionally supportable under section 91(24) of the Constitution Act, 1867, as being a programme relating to Indians and lands reserved for Indians.
[61] It is my respectful view therefore, that the Tribunal had jurisdiction to make the order that it did.
[62] For all these reasons, I would dismiss the appeal with costs.
"Julius A. Isaac"
Isaac J.A.
"I agree
A.J. Stone, J.A."
"I agree
J. Edgar Sexton J.A."
__________________
1 R.S.C.1985, c.H-6.
2 R.S.C. 1985, c-1.
3 A.B., Vol. XVII, pp. 2908-2910.
4 Ibid. p. 2792.
5 Ibid. p. 2791.
6 Ibid. p. 2828.
7 Ibid. p. 2825.
8 A.B. Vol. I, pp. 136-139.
9 Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982, (U.K.) 1982, c.11.
10 A.B. Vol. I, pp. 5-37.
11 (U.K.), 30 & 31 Victoria, c. 3.
12 Ibid., and see Peter W. Hogg, Constitutional Law of Canada, 3rd. ed. (Toronto: Carswell, 1992), p. 150.
13 [1996], 206 N.R. 85 at 96.
14 A.B., Vol. I, p. 92.
15 [1989] 1 S.C.R. 1532 at 1548-1549.
16 [1991] 2 S.C.R. 525 at 564.
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