Date:
20071205
Dockets: A-69-07
A-71-07
Citation: 2007
FCA 392
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA and
THE MI'KMAQ CONFEDERACY OF PRINCE EDWARD ISLAND
Appellants
and
JAMIE GALLANT, STEPHANIE STANGER
and SHELLEY LEWIS
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Charlottetown, Prince Edward Island, on December 5, 2007)
DESJARDINS J.A.
[1]
This
is an appeal from a decision of an Applications Judge of the Federal Court (Gallant
v. Canada (Attorney General), 2007 F.C. 1), who found that a decision of
April 1, 2005 by Human Resources and Skills Development Canada (HRSDC or the
Department) to enter into a single Aboriginal Human Resources Development
Agreement (AHRDA or the Agreement) in the province of Prince Edward Island
(PEI) was an unjustified violation of the Canadian Charter of Rights and
Freedoms, (the Charter) equality rights of the respondents, based on their
status as off-reserve Aboriginal people of PEI. The Applications Judge found
it discriminatory under section 15 of the Charter that the single PEI Agreement
concluded with the representative organisation of the on-reserve Aboriginals of
PEI (the Mi’kmaq Confederacy (Confederacy)) gave a benefit of “community
control” over the Agreement to on-reserve Aboriginals, but not to off-reserve Aboriginals.
The Applications Judge found that the discrimination was not justified under
section 1 of the Charter.
[2]
For
the reasons that follow, we find that it was premature for the Applications
Judge to make a finding of section 15 discrimination in this case, as there was
no evidence that any of the respondents suffered any disadvantage they claimed.
Moreover, he misread the claim made by the respondents in their application for
judicial review and, consequently, he improperly applied the case law he referred
to, namely the Misquadis decision (Misquadis et al. v. Attorney
General of Canada, [2003] 2 F.C. 350, [Misquadis] also known as Ardoch
Algonquin First Nation v. Canada (Attorney General)).
[3]
The
facts and the reasons for judgment of the Applications Judge can be found in
the reported decision (Gallant v. Canada (Attorney
General),
2007 FC 1). It suffices to say for the purpose of this appeal that on April 1,
1999 the Department announced a program (Strategy) to increase employment
opportunities for Aboriginal people. Phase I of the program ran from April 1
1999 to March 31 2005. The Department entered into Agreements with Aboriginal
organisations across Canada.
[4]
Three
such Agreements were entered into with Aboriginal organizations in PEI during Phase
I. The organizations were the Abegweit First Nation, the Lennox Island First
Nation and the Native Council of PEI. The Abegweit First Nation and the Lennox
Island First Nation are the only two Indian “bands” on PEI, as defined
by the Indian Act R.S.C., 1985, c. I-5. The Native Council is a
non-profit organisation that advocates for Aboriginal persons living
off-reserve in PEI.
[5]
Phase
II of the program started on April 1, 2005. The Department decided there
should be only one Agreement for PEI. This decision was
dictated by reason of economies of scale and by past difficulties the Native
Council had in meeting the requirements of the AHRDA (reasons for judgment of
the Applications Judge, paragraph 73). After numerous consultations, the
Department suggested that the Native Council and the Confederacy, formed of the
chiefs and councils of both Indian bands, submit proposals of their own. The
Native Council declined to do so stating that it did not have the mandate to
represent on-reserve Aboriginal people. On or about April 1, 2005, the
Department signed an Agreement with the Confederacy, making it the sole program
holder on PEI. This was
the decision under review before the Applications Judge.
[6]
The
respondents were seeking the following remedies in their application for
judicial review:
(a) “an Order quashing the decision of
HRSDC; and
(b)
a
Declaration that AHRDAs shall ensure the fair and equitable distribution of
funds for human resource programming to all Aboriginal people on Prince Edward
Island, including non-status and off-reserve Aboriginal people; or
(c)
in the
alternative, an Order requiring HRSDC to enter into a further AHRDA, or further
AHRDAs, to ensure the fair and equitable distribution of funds for human
resource programming to all Aboriginal people on Prince Edward Island,
including non-status and off-reserve Aboriginal people; or
(d)
in the
further alternative, an Order requiring HRSDC to modify the terms of the AHRDA
with the MCPEI to ensure the fair and equitable distribution of funds for human
resource programming to all Aboriginal people on Prince Edward Island,
including non-status and off-reserve Aboriginal people.”
[My emphasis.]
[7]
The
respondents brought, however, no evidence on which to establish that the AHRDA
funds under the authority of the Confederacy were not fairly and equitably
distributed in PEI to Aboriginals, including off-reserve
Aboriginals. The judicial review proceeding was commenced before the
Confederacy AHRDA was fully operative.
[8]
The
respondents are therefore seeking a remedy for a dispute that does not exist.
It may never exist considering that the Agreement makes all Aboriginal people in
PEI eligible for
the program and advisory committees are in place to allow for interface between
the recipients, the AHRDA holder and the Department. The respondents’ Charter
claim was premature. The Applications Judge erred in a palpable and overriding
way in disregarding this absence of evidence.
[9]
This
being said, the “community control” the Applications Judge found to exist as a
benefit the respondents were deprived of is in fact created by the Indian
Act as a result of Section 91(24) of the Constitution Act, 1867 (U.K.),
30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5, and the
historical relations between the Crown and the Indians. It is unrelated to the
claim made by the respondents about a “fair and equitable distribution of
funds”.
[10]
Notably,
the Applications Judge had no difficulty finding that the decision to award the
sole AHRDA to the Confederacy had not had the effect of preventing off-reserve
Aboriginal people from accessing AHRDA funding (see reasons for judgment of the
Applications Judge at paragraph 48). He felt, however, that this was not the
claim brought by the respondents. “Like the claim in Misquadis”, he
wrote, at paragraph 48 of his reasons, “the discrimination claim here is that
there is differential treatment between the two groups since the decision gives
the reserve-based population the opportunity to exercise ‘community control’
over the AHRDA holder and the means to ensure accountability for the execution
of the Strategy through their ability to vote for or against their councils and
chiefs who control the AHRDA holder”.
[11]
Again,
at paragraph 63 of his reasons, the Applications Judge misread the claim that
was before him when he stated:
Since the claim is based on
community control of the AHRDA holder and not based on access to AHRDA funding, the needs of the applicants
to be considered at this stage is the need of the off-reserve community to have
“community control” over the AHRDA holder. The applicants did not submit any
specific evidence to prove that this is indeed a need of the off-reserve
community, but the applicants point to Misquadis […]
[My emphasis.]
The case before him related
indeed to “access to AHRDA funding”and not “community control”.
[12]
We
find that the Applications Judge erred by rendering his decision on the basis
that the facts found to exist in the Misquadis decision had been
established before him (Collins v. Canada, [2002] FCA 82, per Sharlow
J.A., at paragraph 34). Not only does the record not establish the existence of
these facts but the evidence pointed in the other direction. The respondents’
needs and the evidence they adduced, to the extent that cogent evidence can be
said to have been adduced, was not directed at “community control” but at the
“fair and equitable distribution of funds”. In doing so, the Applications
Judge erred in law and his decision should be set aside.
[13]
The
appeal will be allowed with costs to the appellants, and the order of the
Applications Judge of January 3, 2007, will be set aside.
"Alice
Desjardins"
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