SECTION 15 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND THE FUTURE OF FEDERAL REGULATION OF INDIAN STATUS
Ian Peach*
Abstract
The distinctions that the federal government makes among Aboriginal people on the basis of residency and racial background have been criticized and challenged under the Canadian Charter of Rights and Freedoms for being discriminatory and destructive of Aboriginal identity. If these distinctions are the subject of such strong and consistent criticism and have been the subject of several successful equality rights challenges, one must ask what alternatives are available that are both likely to be sustainable in the face of constitutional challenge and are more normatively satisfying.
For the federal government, the obvious response is to treat all Aboriginal people equally, except where the particular circumstances of the historical relationship between the Crown and Aboriginal peoples dictate different treatment. This would lead the federal government to repeal those sections of the Indian Act that define who is a status Indian, commit to providing all members of all Aboriginal communities with access to federally- funded programs, services and benefits and turn over responsibility for defining membership to Aboriginal communities themselves, as an exercise in political self- determination.
If Aboriginal communities were to develop membership codes that treated males and females equally and were based on self-identification as a community member, ancestral connection to the historic Aboriginal community and acceptance by the modern community, it seems unlikely that a Canadian court would overturn them. There is nothing preventing the federal government from implementing this alternative approach now, without requiring the courts to force a federal response.
In administering the Indian Act and providing programs and services to Aboriginal peoples, the federal government has created numerous distinctions between those who
* LL.M. candidate, Queen’s University and Special Advisor, Office of the Federal Interlocutor for Métis and Non-Status Indians, Indian and Northern Affairs Canada. The contents of this paper represent the personal views and analysis of the author and in no way should be misconstrued as representing the position of the Government of Canada. I wish to thank Mark Walters and Bradford Morse for their valuable comments on earlier drafts of this paper. 2
qualify for access and those who do not on the basis of residency and ability to be
registered under the Indian Act (also known as Indian status). The distinctions that the
federal government makes among Aboriginal people on the basis of residency and racial
background have been roundly criticized for discriminating against First Nations women and Aboriginal peoples who were not recognized as being “Indian” by federal legislation.
They have been a source of federal-provincial conflict for at least two decades and the
Royal Commission on Aboriginal Peoples was strongly critical of these divisions,
commenting that,
Through its restrictive and sexist definition of 'Indian' and the selective application of the involuntary enfranchisement provisions, the Indian Act has created a legal fiction as to cultural identity. … Categories of aboriginality have been created through Canadian law as though Aboriginal identity and the rights that go with that identity could be chopped and channelled into ever more specific compartments or, in some cases, excised completely.1
Aboriginal individuals and groups have also sought to bring an end to these distinctions
in both domestic courts and international fora since the early 1980s. While certain
elements of the federal legislative regime have been found to be discriminatory under
section 15 of the Canadian Charter of Rights and Freedoms2 and have subsequently been
changed, the divisions created by federal legislation and policy largely remain in place
1 Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Supply and Services Canada, 1996), Vol. 4, at 23.
2 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. 3
and, in some cases, have been exacerbated by the unintended consequences of previous
federal efforts to bring the Indian Act into compliance with the Charter. One must ask if
these divisions can be sustained or if they, too, will eventually be declared in
contravention of Aboriginal people’s fundamental equality rights. One must also ask if
there are alternatives to the current federal approach to defining status through the Indian
Act that would be sustainable and that, therefore, should be adopted as a matter of policy,
rather than leaving the issue to the courts to decide.
In looking at the decisions of the courts when Aboriginal people challenge federal and provincial distinctions between Aboriginal peoples on the basis of section 15 of the
Charter, one cannot yet be certain that the distinctions created by the federal government will be found to be unconstitutional, though the weight of jurisprudence seems to be going against the federal government. All that one can know for certain at this point is that relying on the courts will mean a long, slow process of policy reform. As Bradford
Morse has described the situation,
The ongoing judicial consideration of the Indian Act from the perspective of section 15 rights raises many uncertainties about the future of the Act. The litigation to date suggests that the Indian Act will not be struck down entirely; however, many provisions will likely be invalidated or eviscerated over time on a case-by-case basis.3
On the other hand, the courts have already provided guidance on a membership regime
that could survive Charter scrutiny in the case of R. v. Powley.4 We will argue that,
3 Bradford W. Morse, "The Charter and Aboriginal Peoples after 25 Years: An Uneven Experience" in Mitchell, Peach, Smith and Whyte A Living Tree: The Legacy of 1982 in Canada's Political Evolution (Toronto: LexisNexis Canada, 2007) at 611.
4 2003 SCC 43, [2003] 2 S.C.R. 207. Interestingly, Powley itself may raise a new issue of equality between Métis and First Nations, though in this case the advantage is with Métis. Whereas one of the factors in determining whether a First Nation’s practice grounds an aboriginal right is whether the practice was a 4
given the uncertainty about the constitutionality of distinctions between Aboriginal peoples made by non-Aboriginal governments and the strength of normative critiques of
those governments taking on that role, the federal government should replace its current
approach of legislating distinctions among Aboriginal peoples with an approach that
recognizes and supports community self-determination of community membership.
To support this argument, the second section of the paper will review the case law in
which Aboriginal people or communities have used section 15 of the Charter to
challenge their exclusion from benefits and political rights. While the recent Supreme
Court of Canada decision in R. v. Kapp is not a case within this class, this section will
also provide a critical analysis of that decision because of the concerns it raises for future
equality rights analyses concerning distinctions among Aboriginal peoples. In the third
section, we will look at normative critiques of legislated distinctions among Aboriginal
peoples, both from scholars and from the Royal Commission on Aboriginal Peoples. The
paper will then turn, in the fourth section, to exploring the constitutional viability of
alternatives to continuing with having the federal government define who is an “Indian”.
The first section, however, will provide a brief overview of the history of legislative
definitions of “Indian” and the distinctions that these definitions have created Aboriginal
peoples.
practice of the community prior to contact with Europeans, the test for Métis aboriginal rights is whether the practice in question was a practice of the Métis community before effective European control of the region in which the practice took place. The latter date could be significantly later than the date of contact. While beyond the scope of this paper, this distinction in dates for determining whether there is an Aboriginal right to a certain practice raises interesting questions about the equality of the treatment by the courts of Métis and First Nations assertions of Aboriginal rights. 5
1) The Definition of “Indian” in Canadian Legislation
The rules for determining who is and who is not a status Indian have always been a
bureaucratic creation of the Government of Canada. They have little to do with an
individual’s actual identity as an Aboriginal person, and they have always been
intertwined with gender discrimination. The first legislative definition of “Indian” was
contained in the Act for the better protection of the Lands and Property of the Indians of
Lower Canada in 1850. This definition was a broad one, which included all persons of
“Indian blood” who were “reputed to belong to the particular Body or Tribe” and the
descendants; all persons intermarried with this first group and residing among them, and
their descendants; all persons residing among the “Indians” whose parents on either side
were “Indians”; and all persons “adopted in infancy by an such Indians” and their
descendants.5 This broad definition did not last long, however; the legislation was amended the following year to exclude those adopted in infancy and non-Indian men married to Indian women.6 After Confederation, the definition of “Indian” used in
Canada East (the former Lower Canada) was extended to the entirety of the new
Dominion but this was amended in 1869, with the Gradual Enfranchisement Act, so that an Indian woman who married a non-Indian man ceased to be an Indian.7
5 An Act for the better protection of the Lands and Property of the Indians in Lower Canada, S. Prov. C. 1850, c. 42 (13 Vic., c. 42), s. 5.
6 An Act to repeal in part and to amend an Act, intituled, An Act for the better protection of the Lands and property of the Indians in Lower Canada, S. Prov. C. 1851, c. 59 (14 Vic., c. 59), s. 2.
7 Royal Commission on Aboriginal Peoples, Vol. 1, at 274-6. This statute also limited the vote in band council elections to Indian men, thereby removing Indian women from the political life of the band. 6
While the first Indian Act of 1876 referred to “Indian blood” in determining status, this
was replaced with the concept of “registration” with the 1951 revision to the Act and a
new bureaucratic entity, the Indian Register, was created to administer the process. This
also served to tighten access to Indian status, and the benefits that flowed with it, for
fiscal reasons.8 In the conversion to a centralized system of registration, however, the
names of many people who ought to have been on the band lists were never added, thus denying them and their descendents access to Indian status.9 As well, overt gender
discrimination continued in the post-1951 status rules. A status Indian woman who
married a non-status Indian man automatically lost her status, and the attendant rights,
while a status Indian man who married a non-status Indian woman not only kept his
status, but passed his status onto his wife.
This discriminatory rule was brought before the United Nations in 1981 by an Indian
woman, Sandra Lovelace, who had lost her status upon marriage. Between this challenge
and the inclusion of the new Canadian Charter of Rights and Freedoms, which included
equality rights, in the Canadian Constitution in 1982, the Government of Canada realized
that the overt gender discrimination in the Indian Act would need to be altered. Thus, the
government introduced Bill C-31. While this removed the most overt gender
discrimination in the Indian Act status rules, discrimination between status and non-status
Indians continued, often due to the gender discrimination that existed in previous
versions of the Indian Act. The Royal Commission on Aboriginal Peoples provided an
8Ibid. at 311.
9 Ibid. at 312. 7
extensive description of how the new status rules contained in Bill C-31 operate and how
they perpetuate past gender discrimination. As described by the Royal Commission,
The bill created two main categories of status Indians. Under subsection 6(1), legal status is assigned to all those who had status before 17 April 1985, all persons who are members of any new bands created since 17 April 1985 (none have been created), and all individuals who lost status through the discriminatory sections of the Indian Act. Subsection 6(2) covers people with only one parent who is or was a status Indian under any part of section 6(1). It must be stressed that the one-parent rule in subsection 6(2) applies only if that parent is entitled to status under subsection 6(1). Thus, if an individual has one parent covered by subsection 6(2) and one who is non- Indian, the individual is not entitled to status. The children or other descendants of Indian women who lost status under the discriminatory provisions described earlier will generally gain status under subsection 6(2), not subsection 6(1), since the reason their mothers lost status in the first place was that their fathers did not have Indian status when their parents were married.10
Thus, the Royal Commission concluded that,
sex discrimination, supposedly wiped out by the 1985 amendments, remains. … Such anomalies result from the fact that the Bill C-31 amendments build on past status and membership policies and provisions. They are, in this respect, somewhat reminiscent of the 1951 revisions in which the notion of 'entitlement to registration as an Indian' replaced that of 'Indian blood', but without breaking with past practices.11
2) Judicial Consideration of Section 15 of the Charter and Aboriginal Peoples
The current approach to determining whether government action breaches equality rights
was established by the Supreme Court of Canada in the case of Law v. Canada (Minister of Employment and Immigration).12 The Court in Law indicated that, in determining
whether a discrimination claim is valid, courts should undertake three broad enquiries.
10 Ibid., Vol. 4, at 39-40.
11 Ibid. at 37.
12 [1999] 1 S.C.R. 497. 8
The first is whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fails to take into account the claimant’s already disadvantaged position within Canadian society, resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristics.13 The second enquiry is asks whether the distinction is based on a ground enumerated within section 15 or one that is analogous to it because it is a personal characteristic that is immutable on changeable only at great personal cost.14
The third enquiry is into whether the differential treatment discriminates in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage.15 The Supreme Court also identified four factors to consider in undertaking this last enquiry, while recognizing that there may be others to take into consideration. Those the Court identified were whether the claimant or the claimant’s group has suffered from pre-existing disadvantage, vulnerability, stereotyping or prejudice; whether the challenged legislation takes into account the actual needs, capacities and circumstances of the claimant group in creating differential treatment; whether the challenged legislation has as its purpose or effect the amelioration of the situation of an individual or group more disadvantaged than the claimant or their group; and the significance of the interest affected by the challenged differential treatment.16 The Court noted, however, that these are only factors in
13 Ibid. at para. 39.
14 Ibid.
15 Ibid.
16 Ibid. at paras. 63, 70, 72, 74. 9
determining whether a challenged distinction actually constitutes discrimination by
demeaning the dignity of the claimant.17
Stripped bare, the principle of section 15 of the Charter as it applies to the provision of
benefits by governments is that “while the government may extend… a benefit to a
limited number of persons, it may not do so in a discriminatory fashion, and particularly
not on a ground prohibited under s. 15 of the Charter.”18 While there is not yet a large
body of jurisprudence using this principle to challenge distinctions made by governments
among Aboriginal peoples in providing benefits, there have been a number of cases.
These cases tend to fall into three broad categories: challenges to the exclusion of some
status Indians from benefits based on residency; challenges to the exclusion of individuals from status under the Indian Act or band membership; and challenges by groups of non-status people seeking equal treatment with Indian Act bands. We shall review each category in turn.
a) Equality of off-reserve residents
The first case that the Supreme Court of Canada decided in which an Aboriginal individual challenged the Indian Act under section 15 was Corbiere v. Canada (Minister of Indian and Northern Affairs)19, a challenge to the Indian Act provisions that limited the
17 See, for example, ibid. at para. 75.
18 Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, at 1041 (per l’Heureux-Dubé J.).
19 [1999] 2 S.C.R. 203. 10
right to vote for Chief and Council of an Indian band to reserve residents. This remains
an important decision for the equality rights of status Indians, as the Court, in two
concurring judgments, decided that the provision that denied off-reserve status Indians
the right to vote in band elections was discriminatory and could not be saved by section 1
of the Charter. Most importantly, the Court established “Aboriginality-residence” as an
analogous ground of discrimination.
The Court provided a thorough explanation of why “Aboriginality-residence” was an
analogous ground. Justices McLachlin and Bastarache asked, rhetorically,
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 — race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.20
They then concluded that the Aboriginality-residence distinction goes to a personal characteristic essential to a band member’s personal identity and which is, thus, changeable only at an unacceptable cost to their personal identity.21
Turning to whether the limitation in the Indian Act actually discriminated against off-
reserve Indians, McLachlin and Bastarache JJ. stated that,
Taking all this into account, it is clear that the s. 77(1) disenfranchisement is discriminatory. It denies off-reserve band members the right to participate fully in band governance on the arbitrary basis of a personal characteristic. It reaches the
20 Ibid. at para. 13 (per McLachlin and Bastarache, JJ.).
21 Ibid. at para. 14 (per McLachlin and Bastarache, JJ.). 11
cultural identity of off-reserve Aboriginals in a stereotypical way. … This engages the dignity aspect of the s. 15 analysis and results in the denial of substantive equality.22
Madame Justice l’Heureux-Dubé addressed similar themes in her judgment. She commented that,
off-reserve band members experience particular disadvantages compared to those living on-reserve because of their separation from the reserve. They are apart from communities to which many feel connection, and have experienced racism, culture shock, and difficulty maintaining their identity in particular and serious ways because of this fact.23
In coming to her conclusion that the Indian Act discriminated against status Indians resident off reserves, Madame Justice l’Heureux-Dubé also articulated how governments must act in providing benefits to accord with the basic principle of section 15 of the
Charter. She stated,
Even when the interests of various disadvantaged groups are affected, s. 15(1) mandates that government decisions must be made in a manner that respects the dignity of all of them, recognizing all as equally capable, deserving, and worthy of recognition. The fact that various minorities or vulnerable groups may have competing interests cannot alone constitute a justification for treating any of them in a substantively unequal manner, nor can it relieve the government of its burden to justify a violation of a Charter right on a balance of probabilities…24
The next case to raise the issue of discrimination based on Aboriginality-residence directly, Francis v. Mohawk Council of Kanesatake25, was also a voting rights case. The
22 Ibid. at para. 18 (per McLachlin and Bastarache, JJ.).
23 Ibid. at para. 72 (per l’Heureux-Dubé J.). See also paras. 85-89 for an extensive discussion of the forces that have led to off-reserve residency, especially for women, and the effect of off-reserve residency on the recognition of an individual’s Aboriginal identity.
24 Ibid. at para. 98 (per l’Heureux-Dubé J.).
25 2003 FCT 115, [2003] 4 F.C. 1133 (F.C.T.D.). 12
difference, though, was that the Mohawk Council of Kanesatake was elected pursuant to
a Band custom election code, rather than the Indian Act. While the Federal Court, Trial
Division, decided that it was not necessary to determine whether the exclusion of off-
reserve Band members from voting under Band custom election codes violated section 15
of the Charter, the Court did note that,
Recent indications in the jurisprudence of the Federal Court of Canada show a certain inclination towards the applicability of the Supreme Court's decision in Corbiere, supra, to custom band elections [citations deleted]. However, in none of these decisions did the Court engage in any kind of extensive analysis of the "complex" legal issues involved in determining whether Corbiere, supra, also applied to custom band elections. I think this question is still open to debate and the indications already given by the Court are by no means definite.26
This question was resolved, at least at the level of the Federal Court, Trial Division, two years later, in the case of Clifton v. Hartley Bay (Electoral Officer). 27 In deciding this
challenge to a band custom election code, the Federal Court, Trial Division, quickly
found that there was a distinction in the election code, that the distinction was based on
the analogous ground of Aboriginality-residence and that this distinction was
discriminatory. Thus, the Federal Court, at least at the level of the Trial Division, has taken the view that the complete exclusion of off-reserve status Indians from voting is a violation of section 15 of the Charter and cannot be justified even in the case in which the exclusion is part of a Band custom election code.
26 Ibid. at para. 77.
27 2005 FC 1030, [2006] 2 F.C.R. 24, [2005] 4 C.N.L.R. 161 (F.C.T.D.). 13
The fourth case on the issue of discrimination against off-reserve Band members was
Esquega v. Canada (Attorney General).28 Unlike the previous cases, this was a challenge
to the Indian Act exclusion of off-reserve members from standing for election as Band
councillors. The Federal Court, Trial Division found the exclusion discriminatory and
found that it could not be saved as a reasonable limit on equality on essentially the same
logic as the Supreme Court of Canada used in Corbiere. Thus, off-reserve Band members now also have the right to stand for election as Band councillors. In fact, the courts have consistently found restrictions on participation in band politics to be a violation of equality rights under the Charter. This consistent pattern of victories for claimants leads one to wonder whether any restriction on the basis of Aboriginality- residence could withstand Charter scrutiny.
b) Individuals seeking status or equality with status Indians
The second group of cases is those in which individuals who have been denied status or equality with those individuals who have status challenge this denial on Charter grounds.
Non-status Indians, Métis and First Nations people have all turned to the courts in an attempt to bring an end to the discriminatory distinctions among Aboriginal individuals on the basis of status. The first case that used section 15 of the Charter to challenge such distinctions among Aboriginal people was a hunting case in Saskatchewan, R. v.
28 2007 FC 878, [2008] 1 F.C.R. 795 (F.C.T.D.). While the case came before the Federal Court of Appeal in 2008, only the remedy of striking down the relevant provision of the Indian Act was appealed, not the substantive decision. See Canada (Attorney General) v. Esquega, 2008 FCA 182, [2008] 3 C.N.L.R. 115. 14
Watier.29 Watier, a Métis, challenged the distinction made in the provincial Wildlife Act
between First Nations people, who could hunt freely, and Métis, who had to have a
provincial “tag” or licence to hunt deer in southern Saskatchewan. Because Métis
hunting rights had not been recognized when this case was brought in 1999, however, the
Provincial Court concluded that Watier had not been discriminated against. In the
Court’s view, the differential treatment did not reflect any “stereotypical application of
presumed group or personal characteristics”, but flowed from the constitutionally
guaranteed rights enjoyed by Indians.30
The next case in which an individual sought equal treatment with status Indian band members was Scrimbitt v. Sakimay Indian Band Council.31 In this case, Scrimbitt, a
member of the Sakimay First Nation who married a non-Indian in 1971 and lost her
status, but who regained her status under Bill C-31, was struck from the Band list and not
allowed to vote in Band elections due to the operation of the Band’s membership code,
which was designed to disenfranchise potential band members who had received status
by the operation of Bill C-31. She challenged this exclusion as incompatible with section
15 of the Charter and won. The Federal Court, Trial Division, decided that the refusal of
the right to vote discriminated against Ms. Scrimbitt and was based on sex and marital
29 [2000] 2 C.N.L.R. 269 (Sask. Prov. Ct.).
30 Ibid. at paras. 23-24. Now that the Supreme Court of Canada has recognized that Métis have an Aboriginal right to hunt in Powley, it seems unlikely that a regulatory regime that treated Métis exercising their Aboriginal right to hunt differently from status Indians doing so would withstand Charter scrutiny.
31 [2000] 1 F.C. 513, [2000] 1 C.N.L.R. 205 (F.C.T.D.). 15
status, which are immutable characteristics.32 It also determined that refusing Ms.
Scrimbitt the right to vote was an affront to her dignity.33 Thus, the refusal contravened
section 15 of the Charter.
A similar challenge was brought in the case of Grismer v. Squamish First Nation.34 In
this case, the adult adopted children of a Squamish First Nation member were denied
membership because of the rules of the First Nation’s membership code. This code
established three categories of members: 1) descendant members, 2) lineal members, and
3) acquired members.35 Lineal members, the class under which the claimants sought to become members, require that applicants have a biological parent who is a Squamish
First Nation member.36 Acquired members are primarily minor children with Indian
status who have been adopted by two Squamish parents.37 Because the parent of the claimants who was a member of the First Nation was only their adoptive parent, the claimants were denied the status of lineal members and because the claimants were over
18 in this case, they were also denied acquired membership.38
32 Ibid. at para 52.
33 Ibid.
34 2006 FC 1088, [2007] 1 C.N.L.R. 146 (F.C.T.D.).
35 Ibid. at para. 8.
36 Ibid. at para. 11.
37 Ibid.
38 Ibid. 16
In deciding this case, the Federal Court, Trial Division, decided that an infant cannot change their status as an adopted child, making it an immutable characteristic, while the adoption status of an adult child is constructively immutable.39 As a consequence, the status of adopted child qualifies as an analogous ground.40 The Court then went on to decide that, while the Squamish First Nation had the right to develop its own membership code, its provisions discriminated between adopted and biological children, as well as among adopted children themselves.41
Thus, the Court found that paragraph 7(b)(i) of the Squamish First Nation membership code was contrary to section 15 of the Charter. The Court, however, went on to find the code to be justified under section 1 of the Charter, due to the existence of the acquired membership provisions. The First Nation described this provision as a “compromise” arrangement to make provision for adopted children and felt that to go further and include a provision for the adopted child of only one Squamish parent would unduly stretch Squamish laws and traditions.42 The Court concluded that,
Considerable deference should be accorded to the Squamish in making this policy decision, particularly since it concerns questions of citizenship, Band custom and lineage... In my opinion, in the case at bar, the “compromise” arrangement provided for in the Membership Code minimally impairs any rights that may exist for non-Squamish
39 Ibid. at para. 46.
40 Ibid.
41 Ibid. at para. 57.
42 Ibid. at para. 72. 17
adoptees, while still achieving the objective of protecting Squamish culture and identity through traditional means.43
The Court did, however, note that, “in another case, based on a differently constituted evidentiary record, another judge may have come to a different conclusion”44 on the issue of
whether an infringement is justified.
The fourth case in this category, Ochapowace Indian Band v. Saskatchewan (Department
of Community Resources),45 was a challenge by Chief Denton George of the Ochapowace
First Nation to a provision of Saskatchewan’s child and family services legislation that
allowed the Chief of a band to be designated as a “person of sufficient interest” to be a
party to child adoption proceedings in cases in which a status Indian child was being
adopted but not in cases in which a non-status Indian child was being adopted. While the
equality rights question in this case was brought by a Chief of an Indian band, rather than
the non-status children themselves, it clearly raises the issue of whether the distinctions
between status Indians and non-status Indians constitute discrimination contrary to
section 15 of the Charter.
The Saskatchewan Court of Queen’s Bench decided that the distinction identified by
Chief George as between status and non-status Indian children did not constitute
discrimination. To come to this conclusion, however, the Court redefined the groups
43 Ibid. at paras. 73-74.
44 Ibid. at para. 83.
45 [2007] 2 C.N.L.R. 261 (Sask. Q.B.). 18
being compared, replacing the proposed comparison between status and non-status
Indians with a comparison between Aboriginal and non-Aboriginal children. This was despite the fact that the distinction made in the Saskatchewan legislation is specifically between status Indians and all other children, even those who are Aboriginal but non-
status. In redefining the comparator group, the Court stated that,
For practical reasons, the designation [of a Chief as a person of sufficient interest] is provided for status Indians as defined in the Indian Act. This is a practical limitation but not a reflection of or a comment on any relative historical disadvantage of status Indians vis-a-vis non-status Indians. Thus, the benefit conferred is directed toward Aboriginal communities as compared to non-Aboriginal communities, and not status Indians as compared to non-status Indians.46
This determination is difficult to understand, as the provision to designate a Chief as a
person of sufficient interest is not available in cases involving Aboriginal children who do not have status, even if they are children who are or have a right to be Band members.
The Court went on to determine that,
underinclusivity does not violate the purpose of the Charter. Underinclusivity in this context may include both s. 23(1)(b)’s failure to address non-Aboriginals and its failure to address non-status Indians. In either event, the ameliorative objective can only be met if s. 23(1)(b) can be put to practical use. The provision has no practical use if it treats Aboriginals and non-Aboriginals the same. It treats Aboriginals and non-Aboriginals differently precisely for the reason that treating Aboriginals and non- Aboriginals the same would not lead to a fair result. Likewise, it is not practical to expect the Courts to determine who is and who is not an Aboriginal, without the assistance of the Indian Act, and therefore it is not discriminatory to exclude non- status Indians from the application of the provision because to do otherwise would lead an unworkable system.47
46 Ibid. at para. 51.
47 Ibid. at para. 66. 19
Of course, the issue in this case is not that section 23(1)(b) of the provincial legislation
treats Aboriginal and non-Aboriginal people differently, but that it treats some Aboriginal
people differently than others. Underinclusivity that serves to exclude a group that has
suffered greater disadvantage than the group which receives the benefit provided by the law, such as non-status Indians in comparison to status Indians, is inconsistent with the
principle that government may not provide a benefit to some in a way that discriminates on a ground prohibited under s. 15 of the Charter. Equally, the assertion that it is not practical to expect the courts to determine who is and who is not Aboriginal is both
irrelevant in this case, as there seems to have been no dispute that the child in question was Aboriginal, and contradictory to the Supreme Court of Canada’s decision in the
Powley case, in which the Court did establish a guide for determining Métis identity because it did not have recourse to any pre-existing, authoritative definition.
The Court also stated, in concluding that there was no discrimination, that,
it would indeed be contradictory to conclude that the amelioration of the plight of status Indian adversely affects non-Aboriginals or any other group, such as non-status Indians.
Section 23(1)(b) of the Act has a purpose that is compatible with subsection 15(1) of the Charter. The exclusion of a non-status Indian, who is a Band member or entitled to Band membership, does not undermine this purpose since it is not associated with a misconception as to M and non-status Indian’s actual needs, capacities and circumstances.48
Both of these statements would likely be disputed quite intensely by non-status Indians
themselves.
48 Ibid. at paras. 71-72. 20
The Court of Queen’s Bench’s decision that Chief George could not be designated was
upheld on appeal, on technical grounds, but the Saskatchewan Court of Appeal
questioned the wisdom of the Court of Queen’s Bench even addressing the constitutional
questions.49 In light of the comments of the Saskatchewan Court of Appeal, as well as
the clear analytical weakness of the Court of Queen’s Bench decision, it is likely best to
treat the Queen’s Bench conclusions on the equality rights issue raised in this case as not
being good law.
Recently, the Alberta Court of Appeal decided a case in which the familiar situation of a
challenge to the exclusion of Aboriginal people from the benefits of being a status Indian
was reversed. In Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern
Development),50 former members of the Peavine Métis Settlement who had been removed
from the settlement’s membership list because they had registered as status Indians
challenged their exclusion on equality grounds. The Court of Appeal determined that the
legislative exclusion of Métis individuals who were also registered Indians from
membership in the Métis Settlements was discriminatory according to the test established in Law. In coming to this conclusion, the Court of Appeal decided that the excluded
Métis persons suffered unique disadvantages and stereotyping as being “less Métis” because of their exclusion from membership in the Métis Settlements and, in determining
that the differential treatment did not adequately correspond with the actual
49 [2008] 3 C.N.L.R. 288 (Sask. C.A.), at para. 47.
50 2009 ABCA 239. 21
circumstances of the excluded Métis individuals, reiterated the point made by the
Supreme Court of Canada in Law that when legislation excludes an already vulnerable or
disadvantaged claimant group from a benefit, the purported correspondence is more
closely scrutinized.51 Lastly, the Court of Appeal concluded that the legislative exclusion
could not be justified under section 1 of the Charter not only because the legislation did
not minimally impair the excluded individuals’ equality rights but because the purported
objectives for the exclusion were not pressing and substantial and, even if any of them
were, the exclusion was not rationally connected to those objectives.52
While these cases have addressed distinctions made on the basis of status, the case in which the status rules in the Indian Act themselves have come under the most direct attack is the case of McIvor v. The Registrar, Indian and Northern Affairs Canada,53 which was decided by the British Columbia Court of Appeal in April 2009. In this case,
Sharon McIvor and Charles Jacob Grismer (also the plaintiffs in the Grismer case, above) challenged the Indian Act rules for determining Indian status that had been enacted by
Bill C-31 in 1985. They argued that the amendments to the Indian Act regime contained in subsections 6(1) and (2) discriminate on the grounds of sex, or a combination of sex and marital status, by providing a preferential status entitlement under subsection 6(1)(a) to persons born prior to April 17, 1985 who are entitled to registration as status Indians
51 2009 ABCA 239 at paras. 41‐3, 49.
52 Ibid. at paras. 62‐4, 66‐7.
53 2009 BCCA 153 (B.C.C.A.), appealing 2007 BCSC 827, [2007] 3 C.N.L.R. 72 (B.C.S.C.). 22
through male ancestors, and through marriage to a male status Indian.54 The
complainants claimed that, by incorporating the discriminatory pre-1985 regime into the
post-1985 regime as the starting point for determining entitlement to status, Bill C-31 did
not eliminate discrimination, but continued the gender discrimination of the pre-1985
regime.55
The Court of Appeal pointed out that Mr. Grismer’s children would have Indian status if
his status had been transmitted to him through his father, as he would have had status
prior to 1985 and maintained it under the current subsection 6(1)(a), rather than through
his mother, a was the case.56 Because of the operation of the Bill C-31 regime, Mr.
Grismer only has status under subsection 6(2), so his children cannot acquire status if their mother does not have status under subsection 6(1). While the federal government argued that the differential treatment was solely the result of events that occurred before section 15 of the Charter came into force, the Court of Appeal observed that continuing governmental action may violate the Charter even if it began before the Charter came
into force and therefore did not accept the government’s characterization of the
situation.57 In fact, the Court of Appeal concluded that, “the most important difference in
treatment between Ms. McIvor’s grandchildren and those of her male analogue was a
creation of the 1985 legislation itself, and not of the pre-Charter regime.”58
54 McIvor (B.C.S.C.) at para. 166.
55 McIvor (B.C.C.A.) at para. 11.
56 Ibid. at para 45.
57 Ibid. at paras 46, 48, 57.
58 Ibid. at para 61. 23
In determining that Mr. Grismer had been denied a benefit of the law, the Court of
Appeal also agreed that the right to transmit Indian status to one’s child should be recognized as a benefit. Groberman J., for the Court, commented that, “it seems to me that the ability to transmit Indian status to one’s offspring can be of significant spiritual and cultural value.”59 The Court of Appeal also agreed that Bill C-31 created differential treatment on the basis of the enumerated ground of sex.60 Thirdly, the Court of Appeal determined that the differential treatment was discriminatory, commenting that,
The historical reliance on patrilineal descent to determine Indian status was based on stereotypical views of the role or a woman within a family. … The impugned legislation in this case is the echo of historic discrimination. As such, it serves to perpetuate, at least in a small way, the discriminatory attitudes of the past.
The limited disadvantages that women face under the legislation are not preserve in order to, in some way, ameliorate their position, or to assist more disadvantaged groups. None of the distinctions is designed to take into account actual differences in culture, ability, or merit.61
In addressing the federal government’s argument that the legislation was not discriminatory, Groberman J. made the important point that section 15 of the Charter does not contain language creating an internal limitation on the right, as does section 8, for example, and therefore,
To the extent that the defendants wish to justify discriminatory treatment by reference to the need to respect vested rights and to effect a smooth transition from a
59 Ibid. at para. 71.
60 Ibid. at paras. 83,87. Groberman J. did, however, comment, in obiter, that he found the proposition that section 15 of the Charter extends to all discrimination based on pre-Charter matrilineal or patrilineal descent to be “a dubious one” and questioned whether matrilineal or patrilineal descent could be considered an analogous ground. See Ibid. at para.99.
61 Ibid. at paras 111-2. 24
discriminatory pre-Charter regime to a non-discriminatory post-Charter one, it seems to me that the justification should be considered under s. 1 of the Charter.62
Turning to the question of justification of the law under section 1 of the Charter, the
Court of Appeal also concluded that the law could not be saved as a reasonable limit on
equality. While the Court agreed that preserving the rights of those who acquired Indian
status and band membership before 1985 was a pressing and substantial governmental
objective behind Bill C-31 and that the legislation was proportional to the objective it
sough to serve, they did not consider the legislation to minimally impair the rights of the claimants. They concluded this because the legislation actually made the disadvantage of
those in Mr. Grismer’s situation worse, compared to those who lost status because both
the mother and grandmother were non-Indians, by reinstating the comparator group to
full section 6(1) status while only reinstating those in Mr. Grismer’s situation to section
6(2) status.63 The Court also noted that,
There are two obvious ways in which the violation of s. 15 might have been avoided. The 1985 legislation could have given status under an equivalent of s. 6(1) to people in Mr. Grismer’s situation. Equally, it could have preserved only the existing rights of those in the comparator group.64
Thus, the Court of Appeal declared subsections 6(1)(a) and 6(1)(c) of the Indian Act to be
of no force and effect, though they suspended this declaration for a year.65 Based on this
decision and the other case law to date, one would be wise to consider legislated
62 Ibid. at para 114.
63 Ibid. at para. 143.
64 Ibid. at para. 156.
65 Ibid. at para. 161. 25
restrictions on the acquisition of status that would accord with self-declared identity, and
the passage of that status on to their descendents, vulnerable to Charter challenge. These
issues will be clarified as these and future cases make their way to the Supreme Court of
Canada.66
c) Groups seeking equal treatment with Indian Act bands
The third major class of Aboriginal equality rights cases that are relevant for our purposes
is the set of cases in which groups of Aboriginal people who do not have recognition as
bands under the Indian Act have sought equal treatment with bands. The most
significant, and in some ways most problematic, of these cases is Lovelace v. Ontario,
decided by the Supreme Court of Canada in 2000.67 This was an equality rights challenge by members of Aboriginal communities that were not recognized as Indian bands under the Indian Act to Ontario’s decision to distribute the profits from Casino
Rama, which is on a reserve, only to Indian Act bands. Despite the fact that it was decided not long after Law refined the approach to equality rights analysis in Canada,
Lovelace is inconsistent with the Law analytical process in some important respects. One example of this problem, which affected the result in Lovelace, is the rejection of what the Court termed a “relative disadvantage” approach in determining if there is discrimination. Iacobucci J., for the Court, commented that,
66 While the Crown chose not to seek leave to appeal the British Columbia Court of Appeal decision in McIvor to the Supreme Court of Canada, Sharon McIvor did seek leave to appeal, though at the time of writing no decision had been made on her leave application.
67 [2000] 1 S.C.R. 950. 26
I, therefore, support the Court of Appeal’s rejection … of a relative disadvantage approach. The inappropriateness of such an approach is highlighted by the unique circumstances of this appeal, where we must respectfully acknowledge the disadvantages suffered both by the claimants and the comparator group. Moreover, the remedial and holistic nature of the s. 15(1) inquiry obliges this Court to proceed to the directed contextual analysis from the standpoint of acknowledging severe and profoundly patterned historical disadvantages (see Corbiere, supra, per L’Heureux- Dubé J. at para. 54). In short, beyond the unseemly nature of the relative disadvantage approach, i.e., “pitting one disadvantaged group against another”, its narrow focus is inconsistent with the fullness of the substantive equality analysis.68
Yet, in Law, Iacobucci J., for the Court, had repeatedly used the word “more” as an adjective to modify the word “disadvantaged”, stressing that,
in referring to groups which, historically, have been more or less disadvantaged, I do not wish to imply the existence of a strict dichotomy of advantaged and disadvantaged groups, within which each claimant must be classified. I mean to identify simply the social reality that a member of a group which historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination.69
A related problem arises in the next paragraph of Lovelace, in which Iacobucci J. noted that,
there has been an equally longstanding recognition that an underinclusive ameliorative law, program or activity may violate the constitutional equality interest (Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, per Dickson C.J. at p. 1240). However, until recently, this Court’s consideration of underinclusiveness has been limited to the review of universal or generally comprehensive benefit schemes (see Eldridge, supra; Vriend v. Alberta, [1998] 1 S.C.R. 493).
This appeal, then, represents an opportunity for this Court to confirm that the s. 15(1) scrutiny applies just as powerfully to targeted ameliorative programs.70
68 Ibid. at para. 59.
69 Law, at para. 68. See also, for example, paras. 67 and 72 for use of the term “more disadvantaged”. Para. 72 is particularly important, as it clearly states that the ameliorative purpose or effect of legislation on a more disadvantaged group, not merely a disadvantaged group, is a factor in an analysis of whether discrimination has occurred.
70 Lovelace, at para. 60. 27
Unfortunately, Iacobucci J. did not do so. The Lovelace judgment seems quite confused
in its discussion of whether relative disadvantage is required or not and whether the claimants in this case and the comparator group (Indian bands) are differentially disadvantaged. For example, Iacobucci, J seemed to support a relative disadvantage analysis in his statement that,
In setting out the relevance of this contextual factor [ameliorative purpose] in Law, supra, reference was made to a situation where a relatively more advantaged claimant was excluded from a targeted ameliorative program. Specifically, where the ameliorative purpose or effect of such a program accords with the purpose of s. 15(1) of the Charter, the exclusion will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation (Law, supra, at para. 72).71
As well, at one point in the judgment, Iacobucci J. stated that the claimants face a
“unique set of disadvantages” that can be traced to their exclusion from the Indian Act.
Later in the judgment, however, in asserting that the Ontario legislation has an
ameliorating purpose that makes it non-discriminatory, he stated that the claimants and
the comparator group are equally disadvantaged.72 If the claimants not only share the
disadvantages of being Aboriginal, but also face unique disadvantages, logic would
dictate that the two groups are not equally disadvantaged.
Iacobucci J. also commented that, “one must recognize that exclusion from a targeted or
partnership program is less likely to be associated with stereotyping or stigmatization or
71 Ibid. at para. 84.
72 Ibid. at paras. 70, 85. 28
conveying the message that the excluded group is less worthy of recognition and
participation in the larger society.”73 It is difficult to understand how the targeted nature of a program makes it less stigmatizing to exclude a group that, in most relevant respects, shares the disadvantages of the group targeted for the benefit but also suffers additional disadvantages due to stereotyping.
There are other problems with the Supreme Court’s decision in Lovelace. It is not clear, for example, why the claimants’ lack of a land base should disqualify them from sharing in the profits of a casino operation, one argument used to demonstrate a correspondence between their exclusion and their needs, capacities and circumstances.74 Obviously,
because they lacked reserves, the claimants could not operate an on-reserve casino and
the claimants may not have had a sufficiently clear and legitimate governance regime to
properly administer a share of casino funds, but these points were not the subject of
discussion in the correspondence analysis. As well, using the fact that the claimants had
not been involved in running unregulated gaming operations, and therefore in creating the
jurisdictional dispute that the casino partnership was designed to resolve, to suggest a
correspondence between their exclusion and their needs, capacities and circumstances75 could generate the perverse result of encouraging Aboriginal groups to establish illegal gaming operations for the purpose of securing participation in the partnership. These problems, however, pale in comparison to the reliance the Court placed on its ameliorative purpose analysis in concluding that,
73 Ibid. at para. 86.
74 Ibid. at para. 76
75 Ibid. at para. 77. 29
applying the contextual factors discussed above, I find that the appellants have failed to demonstrate that, viewed from the perspective of the reasonable individual, in circumstances similar to those of the appellants, the exclusion from the First Nations Fund has the effect of demeaning the appellants’ human dignity.76
While Lovelace is a Supreme Court of Canada decision, these analytical weaknesses and
its inconsistency with the analysis established in Law suggests that this decision should be treated with an abundance of caution.
The Federal Court of Appeal came to the opposite conclusion about the exclusion of groups that were not affiliated with the Assembly of First Nations, the Métis National
Council or the Inuit Tapirisat of Canada (i.e. non-status or off-reserve Indian organizations) from being signatories to federal government Aboriginal Human
Resources Development Agreements (AHRDAs) in its decision in Misquadis v. Canada
(Attorney General).77 As the primary benefit of the Aboriginal Human Resources
Development Strategy (AHRDS) was characterized as local community control over
Aboriginal human resources development programs, the claimants argued that their
exclusion from participation in the AHRDS, and therefore their exclusion from
participation in program design and management, constituted discrimination in
comparison to those Aboriginal organizations that were chosen to be agreement
signatories. The Federal Court of Appeal concluded that the distinction made by Human
Resources Development Canada in excluding off-reserve and non-status Indian groups
from participation in the Strategy was based on the well-established analogous ground of
76 Ibid. at para. 90.
77 2003 FCA 473, [2004] 2 F.C. 108. 30
“Aboriginality-residence” first identified in Corbiere.78 Finally, the Court of Appeal
decided that there was discrimination contrary to section 15 of the Charter, noting that,
Lemieux J. drew on Corbiere, Lovelace, and the Royal Commission on Aboriginal Peoples to find that HRDC's refusal to enter into the first type of AHRDA with the respondents' communities perpetuated the historical disadvantage and stereotyping of off-reserve Aboriginal communities. … Lemieux J. was thus entitled to find that HRDC's implementation of the Strategy violated the respondents' section 15 rights.79
The Court of Appeal also upheld the trial judge’s determination that this discrimination could not be saved by section 1 of the Charter.80
A third case of this type was Callihou v. Canada (Minister of Indian Affairs and
Northern Development),81 which was decided by the Alberta Court of Queen’s Bench in
2006. In this case, members of the former Michel Indian Band, which no longer exists as
an Indian Act band due to the enfranchisement of the Band in 1958, challenged the Bill
C-31 amendments to the Indian Act and the federal government’s Specific Claims Policy
as being underinclusive, and thus contrary to section 15 of the Charter, by not restoring
the Band’s status and reserve (among other claims). While many members of the former
Band and their descendants were reinstated as status Indians with the passage of Bill C-
31, because the Band itself was not reinstated, these individuals were placed on the
“general list” for status Indians with no connection to an Indian band.82 The governments
78 Ibid. at paras. 30-33.
79 Ibid. at para. 36.
80 Ibid. at paras. 37-39.
81 2006 ABQB 1, 56 Alta. L.R. (4th) 301, [2006] 4 C.N.L.R. 20.
82 Ibid. at para. 9. 31 of Canada and Alberta sought a summary judgment dismissing the claim. The Court of
Queen’s Bench refused to provide a summary judgment, deciding that,
it may be argued that the 1985 Amendments, in seeking to redress some forms of discrimination including gender, have failed to take into account the claimants’ already disadvantaged position within Canadian society. If so, then it may be possible to demonstrate substantially differential treatment between the claimants and others, on the basis of one or more personal characteristics and analogous grounds, recognizing that the third test from Law still requires separate examination of substantial proof of discrimination… The question in such circumstances is whether any differential treatment may be shown to amount to discrimination in a substantial sense, so as to engage the purpose of s. 15 (1) of the Charter in remedying such ills as prejudice, stereotyping and historical disadvantage. Although a great deal remains to be proven, the materials submitted are not sufficient to foreclose the point. Recognizing that it is not for this court to say whether these arguments are likely to succeed, I cannot conclude at this stage that the matter is beyond doubt and destined to fail.83
The most recent case in this category is Micmac First Nation v. Canada (Minister of
Indian and Northern Affairs),84 decided in 2007, in which members of the Micmac
Nation of Gaspeg brought an equality rights challenge to the exclusion of students who were members of the Nation (which does not have a reserve) from access to the financial assistance that the federal government provides to bands for students who reside on reserves but attend elementary or secondary schools off reserves. In considering this claim, the Federal Court, Trial Division commented that,
I note that in Corbiere, above, the Supreme Court recognized that members of First Nations bands living off-reserve are vulnerable to unfair treatment because a stereotype has been attached to this group that its members are “less Aboriginal” than band members who live on reserves. Based on the evidence in the record, it is clear that a landless band suffers real disadvantages considering the position that the group and its members occupy in the social, political and legal contexts of our society. … In this case, the fact of being a member of a landless band, which includes Band students
83 Ibid. at paras. 110-111.
84 2007 FC 1036, [2008] 1 C.N.L.R. 65 (F.C.T.D.). 32
for purposes of examining the legality of the Program’s impugned provisions, is a personal characteristic. It is immutable or difficult to change.85
Yet, despite this, the Court refused to decide whether the Band members could claim the analogous ground of Aboriginality-residence because, even if there was a distinction based on an analogous ground, the Court concluded that there was no discrimination.86
At this point, the judgment becomes somewhat confusing, as the comparator groups seems to shift from reserve residents to non-Aboriginal students.87 The Court also states that,
On this point, the issue is not whether they have been deprived of a financial benefit— clearly they have been—but whether this deprivation promotes the view that students who do not live on reserves or Crown lands are less capable as human beings or as members of Canadian society. If it is true that landless bands suffered a historical disadvantage in comparison with bands who had land, there is, nevertheless, no relationship between the ground of distinction used in the Program (here, living on a reserve) on the one hand, and the actual needs, capacities and circumstances of the students of an Indian band who do not live on a reserve or Crown lands, on the other hand. In fact, students who are members of a band that has a reserve or occupies Crown lands are not entitled to the benefits of the Program if they do not live on the reserve or the Crown lands.88
This statement, and especially the comment on the lack of correspondence between the grounds of distinction and the needs, capacities and circumstances of off-reserve students, suggests that the Court should find discrimination, yet it does not. The key to why it does not may lie in the Court’s “ameliorative purpose” analysis. On this point, the
Court states that,
85 Ibid. at para. 9.
86 Ibid. at para. 11.
87 Ibid.
88 Ibid. at para. 13. 33
In this case, the Program is one of the targeted federal ameliorative programs designed to address the unique challenges faced by First Nations members living on reserves or Crown lands. From the evidence in the record, it is clear that the primary objective of the Program is to reduce the education gap that affects students who live on reserves or Crown lands by allowing them to benefit from services and programs comparable to those available to other students in the same province or area of residence. … The evidence in the record also shows that the secondary school enrolment rate is lower than the national average for First Nations members who live on reserves.89
This statement seems to make the same mistake in the misuse of the ameliorative purpose
factor as the Supreme Court made in Lovelace. The mere fact that a program ameliorates
the condition of someone who suffers a disadvantage is, on a careful reading of Law,
inadequate to ground a finding that there is no discrimination at work in an
underinclusive program; rather, there must be a finding that the program ameliorates the condition of someone or some group worse off in a relevant way than the claimant group.
If off-reserve Indians in fact have higher rates of school achievement than those on- reserve, the ameliorative purpose test could justify the Court’s finding that there was no discrimination in this case, but there is no indication in the judgment that there was any evidence to this effect provided.
d) R. v. Kapp
While not a case within one of three types that are most relevant to this analysis, the
Supreme Court of Canada’s recent decision in R. v. Kapp90 should be noted, as it could
have implications for future challenges to status-based distinctions in the provisions of programs and services. In essence, Kapp takes the “ameliorative purpose” analysis to an
extreme, and does so by breaking with the jurisprudence that assigned subsection 15(2) of
89 Ibid. at para. 14.
90 2008 SCC 41, 294 D.L.R. (4th) 1, [2008] 3 C.N.L.R. 347. 34
the Charter the status of an interpretive aid for section 15(1).91 While the result in Kapp
was to uphold the federal Aboriginal Fisheries Strategy in the face of a challenge from
mainly non-Aboriginal commercial fishers (a generally more advantaged group), the
Court achieved this result by deciding that subsection 15(2) could be used to justify any
distinction made by government that was designed to ameliorate the conditions of a
disadvantaged group. The statement of greatest concern in this judgment is that,
In our view, there is a third option: if the government can demonstrate that an impugned program meets the criteria of s. 15(2) [the amelioration of the conditions of disadvantaged individuals or groups], it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it.92
This is a concern because it could lead to a situation in which the demonstration that a
government program ameliorates the conditions of a disadvantaged group is sufficient to
avoid any of the equality rights analysis developed in Law, including the requirement that
amelioration be of the conditions of a more disadvantaged group for the ameliorative
purpose factor to be relevant to the determination of whether discrimination existed or
not. The Court reinforced this concern in the very next paragraph of the judgment, by
91 See, for example, Lovelace at paras. 105-108. While the discussion of the inter-relationship between subs. 15(1) and 15(2) is obiter, as no discrimination was found on the basis of a subs. 15(1) analysis, and Iacobucci J. commented that “I do not foreclose the possibility that s. 15(2) may be independently applicable to a case in the future” (at para. 100), his argument for understanding subs. 15(2) as an interpretive aid is strongly and logically presented. Other cases, such as Law, Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, use subs. 15(1) to justify, or even require, the creation of distinctions for the purpose of advancing substantive equality, without recourse to subs. 15(2).
92 Ibid. at para. 37. 35
stating that, “Section 15(2) is more than a hortatory admonition. It tells us, in simple clear
language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed
at combatting disadvantage to be discriminatory and in breach of s. 15.”93 This is a
blanket exclusion from the analytical rigour that the Supreme Court of Canada itself attempted to develop through Law. This seems unnecessary to arrive at the result that the
Court did in Kapp, as non-Aboriginal fishers are not subject to the kind of stereotyping
and harm to their dignity that makes Aboriginal people a disadvantaged group, and one
wonders what effect such an exclusion could have on the determination that other status-
based federal programs, or even the status provisions of the Indian Act themselves, are
discriminatory.
The Alberta Court of Appeal’s application of the Kapp decision in Cunningham makes
the problems with the Kapp decision clear. The Court of Appeal dealt with the
ameliorative purpose analysis first in the context of s. 15(2) in the Cunningham decision
but referred to their s. 15(2) analysis again in their s. 15(1) analysis, commenting that the
ameliorative purpose analysis is best dealt with under s. 15(2), and in their s. 1 analysis.94
This repeated use of the same analysis demonstrates how the Kapp decision has reduced the analytical rigour that had previously been applied to equality rights cases, by not only shifting the ameliorative purpose analysis from the step of a s. 1 justification for discrimination to make it part of the task of determining whether a discrimination exists
(which is the root of the problem with the Supreme Court of Canada’s decision in
93 Ibid. at para. 38.
94 supra note 51 at paras. 37, 70. 36
Lovelace), but further elevating it from merely one contextual factor for making this
determination under s. 15(1) to the sole factor under a s. 15(2) analysis.
The Alberta Court of Appeal also found it necessary to refine the Supreme Court of
Canada’s analysis of s. 15(2) in Kapp to avoid finding that the Métis Settlements
legislation did not discriminate because it had an ameliorative purpose sufficient to
justify it under s. 15(2). Most significantly, the Court of Appeal referred to Nova Scotia
(Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, a case
that pre-dates Kapp, to conclude that the finding that the overall purpose of a statute is
ameliorative is insufficient to justify a particular provision that lacks such an ameliorative
purpose or effect.95 Hopefully, such “refinements” of the Supreme Court’s Kapp decision, including by the Supreme Court itself, will continue to the point that the courts return to the analytical rigour that was previously part of equality rights analysis in
Canada, if Kapp is not simply overturned at some point as a normatively and analytically questionable approach to understanding the meaning of s. 15(2).
The concern over the implications of Kapp aside, when looking at all of the cases reviewed, it seems that the courts show greater deference to provincial governments that use the Indian Act status rules as a short-cut for determining who is sufficiently
Aboriginal to be the beneficiary of targeted programs than they are to federal government
(and, by extension, Indian Act band) uses of status and residency rules to create
95 Ibid at para. 22. Because the Supreme Court of Canada focused its attention in Kapp on “programs” rather than legislation, the majority judgment is unclear on this point. 37 distinctions among Aboriginal peoples. Both Lovelace and Ochapowace Indian Band, cases in which no discrimination was found, were challenges to provincial laws or benefit schemes while discrimination was found in all of the challenges to federal or band rules, except in the Micmac First Nation case. The Alberta Court of Appeal’s decision in
Cunningham, however, suggests that provinces will also have status rules of their own invention closely scrutinized for their compliance with equality rights.
On the other hand, the use of the ameliorative purpose factor has been confusing and, in some cases, seems fundamentally inconsistent with the Supreme Court of Canada’s judgment in Law, the decision in which the Court articulated this factor. Courts have also not yet decided that Indian status (or lack thereof) is an analogous ground of discrimination. This leaves open the questions at root of this exploration: can, or should, the federal government continue to rely on notions of status defined by the federal government to determine who is eligible to partake of programs, services and benefits provided or funded by the federal government? If the federal government cannot, or at least should not, what are the alternatives? The case law suggests that there is a significant likelihood that federal reliance on status and residency rules will continue to be found to be discriminatory. It is to the normative question of whether the federal government should rely on these distinctions, and the normative critiques of these distinctions, that we now turn, prior to proposing alternatives that are more likely to be sustainable and legitimate over the long term.
38
3) Critiques of Indian status as a basis for determining Aboriginality
a) Scholarly critiques
Numerous scholars have criticized the federal government’s role in defining who is and
who is not an “Indian” through the Indian Act for a variety of reasons, including the divisiveness of the rules, their interference with Indigenous peoples’ right of self- determination of membership and their grounding in discredited notions of race. As
Robert Groves and Bradford Morse have put it, “the prospects for any Aboriginal community to successfully chart a new course out of the era of assimilation and presumed conquest will be few and far between without a more coordinated and central resolution of the often arbitrary distinctions drawn among Aboriginal communities.”96
Sébastien Grammond, for example, has written critically of the continuing use of the idea
of race in the Indian Act, despite the fact that most scientists today accept that the notion
of “race” is seriously flawed and ought to be abandoned as a system of classifying
people. His comment that “we have apparently internalized the colonial administrator’s
concern with blood quantum”97 effectively sums up the continuing problem with the
Indian Act. He recommends, instead, that a cultural definition of ethnicity be adopted as
a basis for identifying community membership, as culture encompasses a very broad
96 Robert K. Groves and Bradford W. Morse, “Constituting Aboriginal Collectivities: Avoiding New Peoples ‘In Between’” (2004), 67 Sask. L. Rev. 257 – 299, at 298.
97 Sébastien Grammond, “Disentangling ‘Race’ and Indigenous Status: The Role of Ethnicity” (2008), 33 Queen's L.J. 487 – 518, at 491. 39
range of human behaviour, values and attitudes, an ethnic conception of identity
acknowledges that cultural connections are within the individual's control, ethnicity does
not assume the existence of discrete groups of people objectively identified by the essential elements of their culture, and an ethnic conception of identity does not
necessarily carry any value judgments to the effect that one ethnic group's culture is
superior to that of another.98
Grammond recognizes that ancestry is likely to have some relevance even in a cultural, ethnic definition of membership, as the family is one of the key institutions of cultural transmission, but ancestry is not a perfect proxy for cultural identity.99 The obvious example of this point is the children of couples of mixed heritages. He suggests that,
in order to reach a definition of status that better corresponds to ethnic identity, more than one "proxy for culture" should be used. Factors such as place of birth, place of schooling, languages learned and residence on the group's territory may also be indicative of participation in the group's culture.100
Grammond points to the Powley decision as an example of such a flexible definition of identity and group membership.101
In a similar vein, Jeremy Webber suggests that an understanding of the purpose of
Aboriginal communities as communities that have their own distinct histories and whose
public debates have been shaped by a different set of conceptual tools, “frees us from a
98 Ibid. at 495-6.
99 Ibid. at 508-9.
100 Ibid. at 510.
101 Ibid. at 511. 40
static vision of aboriginal societies based on biological determinism.”102 In Webber’s
conceptualization, the important criterion for Aboriginal identity is not blood but the sharing of a cultural framework.103 John Borrows also notes that Aboriginal peoples are
also much more than kin-based groups; they have social, political, legal, economic and
spiritual ideologies and institutions that are transmitted through cultural systems, or a
shared cultural framework.104
Brian Pfefferle is also critical of having the federal government define who is Aboriginal
through the operation of the Indian Act, particularly for its effects in dividing
communities on such bases as heritage, residency and gender. In his article, “The
Indefensibility of Post-Colonial Aboriginal Rights”, he notes that Indian Act definitions
are not based on identity or historical, cultural, territorial, linguistic, or political origins,
but rather on federal Indian policy, with little recognition of these elements of identity.105
His alternative is to have identity and “Aboriginality” defined within Aboriginal communities themselves.106
102 Jeremy Webber, Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Kingston & Montreal: McGill-Queen’s University Press, 1994), 222.
103 Ibid.
104 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002), 153.
105 Brian R. Pfefferle, “The Indefensibility of Post-Colonial Aboriginal Rights” (2007), 70 Sask. L. Rev. 393 – 423.
106 Ibid. at 394. 41
Catherine Bell and Clayton Leonard have leveled further criticism at the distinctions
made among Aboriginal people by the operation of the law, albeit in the context of
defining Aboriginal rights, and have gone so far as to criticize the development of a
distinctive Métis identity test in Powley. In reviewing an argument of Brian Slattery,
they have commented that,
Slattery suggests that this test [the Powley test], as it applies to the Metis, is problematic for two reasons.173 First, the language of s. 35 does not support the application of different identity tests for Metis, Indians, and Inuit. … nothing in s. 35(2) suggests that the three categories are mutually exclusive. An Aboriginal group need not be exclusively Metis, Indian, or Inuit. These categories can be "overlapping descriptions." Second, in Slattery's opinion, Powley stands for the general proposition that a Metis community is defined as a group of mixed bloods, who develop their own distinctive customs and practices, resulting in a distinctive identity as a community or people. All Aboriginal cultures today are a genetic and cultural fusion of two worlds coming together during the period from first contact to effective European control. … On these grounds, the distinction between Metis and some, or most, other Indian communities fails. … The solution proposed by Slattery is not to eliminate the Metis identity test, but to modify it and to apply it uniformly. He argues that what is required is for the Supreme Court of Canada to take the next necessary step and replace the word "Metis" in the identity test with "Aboriginal."107
This seems a logical reading of the constitutional text, and one that better accords with
how individuals are likely to see themselves.
Pamela Palmeter has provided a further critique of the distinction between status and
non-status Indians in her commentary on R. v. Marshall. She has commented that,
The treaty beneficiaries issue [who is a beneficiary today of treaty promises made in previous centuries] has brought to the forefront the related issue of who has the right to call himself or herself an Aboriginal person or First Nation member. Any future
107 Catherine Bell and Clayton Leonard, “A New Era in Métis Constitutional Rights: The Importance of Powley and Blais” (2004) 41 Alta. L. Rev. 1049 – 1083, at 1076-7. 42
decisions that are made in this regard will have a direct impact on the survival or extinction of the First Peoples of this land. This is not the kind of choice that the Crown, Canadian society or even a few Aboriginal people have the right to make. … The issue of Aboriginal identity, community membership/citizenship and heritage is a cultural right that belongs solely to the Aboriginal members of each Aboriginal nation. On the other hand, this right carries with it a tremendous responsibility to ensure that all members of the community are included, protected and respected. … The principle of fairness will likely mean a joint effort by Aboriginal nations and Canada to arrive at an acceptable resolution of issues related to Aboriginal citizenship, land claim beneficiaries and treaty beneficiaries, with the particular Aboriginal culture as the operative guide.108
She has also commented that there is a real danger in basing Aboriginal and treaty rights on registration under the Indian Act because the rights arise from practices undertaken since time immemorial, long before the arrival of European legislative regimes, and because the assimilationist intentions of the Indian Act will eventually mean the
"extinction" of registered Indians.109 The potential for the “second-generation cut-off” rule in section 6 of the Indian Act to eliminate the class of Aboriginal peoples capable of registration, despite the continued existence of Aboriginal peoples, makes the problem with reliance on the Indian Act rules for determining identity particularly stark.
Sharon McIvor, one of the key litigants in several of the cases reviewed above, has also written critically of the divisions created among Aboriginal peoples by the operation of the Indian Act from the particular perspective of its effect on the equality of Aboriginal women. She has described the gender discrimination that continues because of the effect of Bill C-31’s differentiation in one’s ability to pass on status depending on whether one
108 Pamela D. Palmeter, “An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of Non-Status Indians” (Spring, 2000) 23 Dalhousie L.J. 102, at 104-5.
109 Ibid., at 117. 43
has status on subsection 6(1) or 6(2) as “morally reprehensible”, and has commented that,
“[i]t assigns Aboriginal women to poverty and a general lack of economic security. It
damages Aboriginal communities as well as individual women. It distorts and corrupts
Aboriginal culture, past, present and future.”110 Monique Deveaux has also criticized the
gender discrimination created by the Indian Act but has noted that many Aboriginal women have come to suspect that their biggest obstacle to equality was the opposition of
band councils and male-dominated Aboriginal organizations,111 an assertion reinforced
by some of the cases reviewed above.
b) The Royal Commission on Aboriginal Peoples
As can be seen from this brief overview of the scholarly literature, scholarly
commentators are quite consistent in criticizing the Indian Act status rules and their effect
on understandings of Aboriginal identity. Yet it is not only academic commentators who
are critical of these rules; the Royal Commission on Aboriginal Peoples also strongly
criticized the divisions among Aboriginal peoples that the Indian Act has created. As
with the academic commentators, the Royal Commission focused much of its attention on
the continuing gender discrimination of Bill C-31. As the Report of the Royal
Commission noted,
A woman who gained status under subsection 6(2) will see the impact immediately if she marries out: her children will not have Indian status. All other factors being equal,
110 Sharon Donna McIvor, “Aboriginal Women Unmasked: Using Equality Litigation to Advance Women’s Rights” (2004) 16 CJWL 106 – 136, at 133.
111 Monique Deveaux, “Conflicting Equalities? Cultural Group Rights and Sex Equality” (2000) 48 Political Studies 522 – 539, at 535. 44
this rule creates a situation in which the descendants of a woman who married out before 1985 will have fewer Indian rights than those of her brother who married out at the same time, despite the fact that their degree of Indian ancestry is the same.112
This, of course, is the very issue raised in the McIvor case. The Royal Commission’s
Report was harshly critical of this situation, commenting that, “The establishment of categories for Indian status was a concoction of the federal government, and instead of devising a bill that would truly repair the situation, it created a 'paper blood system' that denied thousands of individuals the opportunity to claim or reclaim their heritage.”113
Earlier in their Report, the Royal Commission commented that,
Thus, it can be predicted that in future there may be bands on reserves with no status Indian members. They will effectively have been assimilated for legal purposes into provincial populations. Historical assimilation goals will have been reached, and the federal government will have been relieved of its constitutional obligation of protection, since there will no longer be any legal ‘Indians’ left to protect.114
The Royal Commission was also concerned about the practical implications of the federal
government’s use of status and residency rules in determining access to services. On this
point, the Commission’s Report states that,
Most contemporary institutions governing Aboriginal life are regulated by norms that originate outside Aboriginal communities. The services they offer are fragmented and sometimes overlapping. These services are extended or withheld from Aboriginal persons on the basis of status categories that are also determined by non-Aboriginal authorities. This results in a service deficiency affecting more than half of all Aboriginal people.115
112 Royal Commission on Aboriginal Peoples, Vol. 4, at 40.
113 Ibid. at 42.
114 Ibid. Vol. 1, at 307.
115 Ibid. Vol. 5, at 16. 45
The Royal Commission extended its critique to band membership codes that were
developed after 1985 without the participation of potential band members who had a right
to acquire status under Bill C-31 and that have the effect of limiting the number of people
who would have a right to band membership.116 The Royal Commission summarized its
concerns thus:
Ultimately, any policy that creates distinctions within a group can create divisions in that group. The amended act establishes a series of distinctions around which disputes can develop: subsection 6(1) versus subsection 6(2), members versus non-members, and Indian versus non-Indian. Even more damaging, these categories have the potential to become the basis for social divisions within First Nations communities.117
The Royal Commission’s concern was both with the creation of an underclass without
rights to services or political participation, under more restrictive band membership rules,
and with the growth in the population of band members who have a right to political
participation and services from their bands but who are not included in the status Indian
population numbers used to determine financial transfers from the federal government,
under more inclusive membership rules.118 Both of these situations have the potential to create resentments and tensions within Aboriginal communities.
The Royal Commission proposed an alternative vision in its Report. The stated that,
In our vision of self-government, nations are made up of thousands of individuals — who should not be categorized as status or non-status, 6(1) or 6(2). All should be equal citizens of strong, healthy nations. The most offensive parts of the Indian Act cannot be changed overnight, but in re-establishing their concept of nationhood, Aboriginal
116 See, for example, ibid. Vol. 4 at 43-49.
117 Ibid. at 48.
118 Ibid. at 48-49. 46
people can overcome the many divisions that have arisen over the years as a result of federal policies. … One of the most important tasks in the first stage will be enumerating potential populations of citizens. At this early stage in the recognition process, the errors and injustices of past federal Indian policy should be corrected by identifying candidates for citizenship in the Aboriginal nation. Candidates should include not only those persons who are now members of the communities concerned but also those persons who wish to be members of the nation and can trace their descent from or otherwise show a current or historical social, political or family connection to that nation. … As nations are rebuilt, it is envisioned that their citizenship codes will embrace all individuals who have ties to the nation but who, for reasons highlighted here, have been excluded in the past. … Rather than imposing restrictive band membership codes that may result in the destruction of communities over time, Aboriginal nations, renewed and strengthened in the ways we have proposed, would implement a citizenship code that fosters inclusion and nurtures nation building.119
It is to the very question of what alternatives to the current approach to determining the
entitlement of Aboriginal peoples to programs, services and benefits are available that we
now turn.
4) Defining an Alternative
Is there a better way to address the issues that status and residency distinctions raise than
through continuing litigation? If the use of Indian Act status and residency is the subject
of such strong and consistent criticism for its damaging effects on Aboriginal
communities and the sense of identity of Aboriginal individuals and these same rules
have been the subject of several successful equality rights challenges, one must ask what
alternatives are available that are both likely to be sustainable in the face of constitutional
challenge and are more normatively satisfying. While some alternatives have already
119 Ibid. at 52-53. 47
been identified, we wish to explore the issues that arise in contemplating alternatives, and
where those issues lead, in greater depth.
For the federal government, the obvious response is to put an end to defining and
dividing up Aboriginal people through the Indian Act and, instead, treat all Aboriginal
people equally, except where the particular circumstances of the historical relationship
between the Crown and Aboriginal peoples, prior to the application of the Indian Act,
dictate different treatment. The decision of the Newfoundland Court of Appeal in
Labrador Métis Nation v. Newfoundland and Labrador (Minister of Transportation and
Works)120 suggests that this may be a wise approach. In that case, the Labrador Métis
Nation (LMN) challenged the refusal of the Government of Newfoundland and Labrador
to consult with them on a highway construction project, claiming that this violated their
aboriginal rights. The question of whether LMN members were Inuit, and therefore the
holders of Inuit rights, or Métis, and therefore the holders of Métis rights, was raised but
the Court decided that,
definitive and final self-identification with a specific aboriginal people is not needed in the present circumstances before the Crown's obligation to consult arises. All the respondents had to do was establish, as they did, certain essential facts sufficient to show a credible claim to aboriginal rights based on either Inuit or Métis ancestry. The situation might be different if the right adversely affected only flowed from one of the Inuit or Métis cultures. But that is not the case.121
This conclusion, which is consistent with Slattery’s recommendations discussed by Bell
and Leonard, suggests that distinctions made by governments among Aboriginal people
120 2007 NLCA 75, 272 Nfld. & P.E.I.R. 178, 288 D.L.R. (4th) 641, [2008] 1 C.N.L.R. 48 (leave to appeal to Supreme Court of Canada refused, May 29, 2008).
121 Ibid. at para. 39. 48
need to be grounded in the Crown-Aboriginal relationship and not based on unilateral
administrative decisions contained in the Indian Act.
The distinctions that should be the first to go are those that distinguish between people on
the basis of residency. The jurisprudence has been consistent in providing off-reserve
band members with the same rights as their on-reserve counterparts on equality grounds.122 To date, these cases have focused on the right to vote for a band council and seek a position on a band council, but there is no reason to expect that the case law will stop there.
Logically, those who vote for a government have a right to expect “their” government to provide them with services that it is within the government’s jurisdiction to provide. If off-reserve band members are the equal of on-reserve members in both voting rights and the right to seek office (the exception being, possibly, in their right to make decisions about reserve lands), it is not unreasonable to expect them to demand equal access to the services that band governments provide and to demand that the federal government adequately fund those services on the basis of a formula that includes all members in the calculation. This principle would likely need to be tempered by a provision that makes services that require physical infrastructure and human resources to deliver (such as education) available where numbers warrant, as is the case with other services guaranteed by the Constitution (such as minority official language education). It is hard to imagine,
122 At first blush, the Micmac First Nation case is somewhat inconsistent, but this was a case in which all members of a band were being treated equally with one another and the judgment is open to criticism. 49
however, that a court would simply accept that a complete bar to off-reserve band
members receiving services from their band is compatible with section 15 of the Charter or that the federal government is under no obligation to provide access to federally- delivered services or include off-reserve band members in its financing formulae, in light of the case law to date. To do so would undermine the value of the right of off-reserve members to participate in band government, a right which the courts established in the first place.
While not as clear-cut as the case of off-reserve members, the criticism of the Indian Act status rules suggests that the federal government would be wise to stop the practice of defining “Indians” entirely and treat at least status and non-status Indians equally. The federal government would, of course, express concern about the fiscal sustainability of providing all Aboriginal people with the full range of federally-funded programs, services and benefits to which on-reserve status Indians currently have access, but there are two possible responses to this concern. The first is that, while it offends notions of equality and cultural identity for the federal government to take upon itself the determination of who is an Indian, it is fair for the federal government to ask what duties or obligations it owes to Aboriginal people. It may well be the case that the federal government does not have a fiduciary duty or treaty obligation to provide Aboriginal peoples with the full range of programs, services and benefits that it currently provides to status Indians who reside on reserves. If this is the case, it is in the realm of legitimate policy debate for the federal government to determine whether it should be providing or financing the programs, services and benefits that it does not have an obligation to provide in the way 50 that it currently does. It is possible, for example, that the federal government’s obligation is not to provide particular services to all Aboriginal people, whatever their circumstances, but to provide Aboriginal people with the assistance necessary for them to achieve self-sufficiency. In this case, the means testing of certain federally-funded benefits that are currently provided universally becomes a possible policy response to the fiscal pressures of expanding the class of those to whom the federal government is required to provide services. It seems highly unlikely that means testing would succumb to equality rights challenges, at least.
The other response available is to accept that the federal government’s obligations have their root in the collective identities of Aboriginal peoples and the relationship between the Crown and the Aboriginal collectivities, but that it is up to these collectivities themselves to determine who their members are. This logic would lead the federal government to repeal those sections of the Indian Act that define who is a status Indian, commit to providing all members of Aboriginal communities, whether Indian bands, self- governing First Nations or Métis communities, with access to the programs, services and benefits provided by or funded by the federal government and turn over responsibility for defining membership to Aboriginal communities themselves, as an exercise in political self-determination. Such an approach would be consistent with the recommendations of the Royal Commission on Aboriginal Peoples, as quoted above, and respond effectively to much of the criticism of the current federal role in defining “Indianness”.
51
The federal commitment to provide access to programs, services and benefits to all members is one essential component of any sustainable and normatively satisfying policy
response, to avoid perverse incentives for Aboriginal communities to exclude people
from membership. The Constitution also places limits on the right of Aboriginal
communities to exclude people from membership. Because Aboriginal peoples have
access to section 25 of the Charter to protect their exercise of Aboriginal rights from the
full application of Charter scrutiny, however, they would have greater scope for defining
community membership than does the federal government.
Section 25 of the Charter states that,
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.
Bastarache J., in his concurring judgment in the recent Kapp case, has provided the first
extensive analysis of the operation of section 25 from the Supreme Court. While the
majority signaled its concerns with aspects of Bastarache J.’s reasoning and cautioned
that, “prudence suggests that these issues [of section 25 interpretation] are best left for
resolution on a case-by-case basis,”123 Bastarache J.’s judgment is helpful in reviewing
section 25 jurisprudence to date and thinking about an approach to section 25
123 Kapp, at para. 62. 52
interpretation. He notes that, “[t]here is little case law on the issue, but the recent trend
has been to see the protective feature in s. 25 as a ‘shield’ [against the finding of a
Charter violation], as opposed to an ‘interpretative prism’ [which would interpret the
meaning Charter rights in an Aboriginal context].”124 In support of this view, he quotes
the British Columbia Supreme Court judgment in Campbell v. British Columbia
(Attorney General),125 noting that,
In Campbell, Williamson J. summarized the case law at that point as showing that “the section is meant to be a ‘shield’ which protects Aboriginal, treaty and other rights from being adversely affected by provisions of the Charter”: para. 156. He further suggested that a purposive approach to s. 25 should be taken and that “the purpose of this section is to shield the distinctive position of Aboriginal peoples in Canada from being eroded or undermined by provisions of the Charter” (para. 158).126
He also notes that virtually all academic commentators agree that section 25 operates as a
shield.127 If section 25 of the Charter is, indeed, a shield, an Aboriginal community that
develops a membership code as an exercise of its section 35 aboriginal rights may be able
to avoid some of the equality rights challenges to which the Indian Act status provisions
have been subject.
As noted above, however, this shield is not absolute. Bastarache J., for his part, notes
that section 28 of the Charter guarantees that all Charter rights are available equally to
men and women, notwithstanding anything in the Charter (including section 25).128 As
124 Ibid. at para. 96.
125 [2000] 4 C.N.L.R. 1 (B.C.S.C.).
126 Kapp, at para. 96.
127 Ibid. at para. 94.
128 Ibid. at para. 97. 53
well, section 35 of the Constitution itself ensures that Aboriginal and treaty rights are
guaranteed equally to male and female persons.129 Further, for a membership code to be
a valid exercise of an aboriginal right, it would have to have its source in pre-contact (or
at least pre-“effective European control”) practices of the Aboriginal community.130 This is likely to exclude an aboriginal rights justification for those membership codes, all too common since the passage of Bill C-31, that are designed primarily to limit the group with a right of membership in the community, as pre-contact customary conceptions of membership were extremely flexible and multi-dimensional concepts based on the relationships among individuals rather than strictly on their ancestry. If, however,
Aboriginal communities were to develop membership codes that treated males and females equally and were grounded in the three factors of self-identification as a community member, ancestral connection to the historic Aboriginal community and acceptance by the modern community that the Supreme Court of Canada identified as indicia of Métis identity in the Powley case, it seems unlikely that a Canadian court would overturn it in the name of protecting the general Charter right to equality.
5) Conclusion
Obviously, the federal government’s definition of who is a status Indian and its use of status and residency rules for determining who is eligible for programs, services and
129 Subsection 35(4) of the Constitution Act, 1982 states that “Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”
130 See, for example, R. v. Van der Peet, [1996] 2 S.C.R. 507 at paras. 26-47; Powley, at paras. 15-18. 54
benefits provided or funded by the federal government has not yet been brought to an end
through the strategy of equality rights litigation. Indeed, while many challenges to
federal government and Indian band rules have been successful, the only thing one can be
sure of at this point is that any strategy that relies on constitutional litigation to bring an
end to the divisions among Aboriginal peoples created by the Indian Act will be a long
and arduous road. Still, the majority of Charter challenges to the federal government’s
status and residency rules have been successful and criticism of the federal government’s
role in defining who is an “Indian” has been strong and consistent from both scholars and
the Royal Commission on Aboriginal Peoples. As well, there is nothing preventing the
federal government from implementing the alternative approach reviewed here as a government policy without requiring the courts to force a federal response. It does not seem a radical proposition that it would be in the national interest to have rules for defining Aboriginal community membership that can reliably survive constitutional scrutiny.
Maybe it is time for the federal government to relinquish its role of deciding who is an
“Indian”, and therefore who can be a beneficiary of programs and services, in favour of
community self-determination of community membership. As noted above, this does not
mean that the federal government or Aboriginal communities could no longer make
distinctions among Aboriginal people in determining who could qualify for targeted federal programs. The critical difference between the proposed approach and the current approach is that, under the proposed approach, the distinctions would have to be genuinely connected to the purpose of the program, the particular circumstances of the 55 fiduciary or treaty relationship between the Crown and Aboriginal communities or the needs of certain groups of Aboriginal individuals compared to others; the current formalistic distinctions that are made among Aboriginal peoples on the basis of “status” or residency could not continue to be used in limiting access to federal programs, services and benefits. While this new approach would require federal officials to engage in greater analytical rigour in designing programs for Aboriginal peoples, not only would it be more likely to be Charter-compliant, the requirement that the design of the criteria for access to a program actually be connected to the purposes of the program and the needs, abilities and circumstances of those who might wish to take advantage of it would lead to better program design and a greater likelihood of programs achieving the results they have been purportedly designed to achieve. Along with securing greater equality among
Aboriginal peoples, this change in the federal government’s approach could provide all citizens with better, more effective public policy on Aboriginal issues. 56
Bibliography
Jurisprudence
Callihoo v. Canada (Minister of Indian Affairs and Northern Development), 2006 ABQB 1, 56 Alta. L.R. (4th) 301, [2006] 4 C.N.L.R. 20.
Campbell v. British Columbia (Attorney General), [2000] 4 C.N.L.R. 1 (B.C.S.C.).
Clifton v. Hartley Bay (Electoral Officer), 2005 FC 1030, [2005] 4 C.N.L.R. 161 (F.C.T.D.).
Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239.
Esquega v. Canada (Attorney General), 2007 FC 878, [2008] 1 F.C.R. 795 (F.C.T.D.).
Francis v. Mohawk Council of Kanesatake, 2003 FCT 115, [2003] 4 F.C. 1133.
Grismer v. Squamish First Nation, 2006 FC 1088, [2007] 1 C.N.L.R. 146.
Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995.
Labrador Métis Nation v. Newfoundland and Labrador (Minister of Transportation and Works), 2007 NLCA 75, 272 Nfld. & P.E.I.R. 178, 288 D.L.R. (4th) 641, [2008] 1 C.N.L.R. 48.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
Lovelace v. Ontario, [2000] 1 S.C.R. 950.
McIvor v. The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827, [2007] 3 C.N.L.R. 72 (B.C.S.C.).
McIvor v. The Registrar, Indian and Northern Affairs Canada, 2009 BCCA 153 (B.C. C.A.)
Micmac First Nation v. Canada (Minister of Indian and Northern Affairs), 2007 FC 1036, [2008] 1 C.N.L.R. 65 (F.C.T.D.).
Misquadis v. Canada (Attorney General), 2003 FCA 473, [2004] 2 F.C. 108.
57
Ochapowace Indian Band v. Saskatchewan (Department of Community Resources), [2007] 2 C.N.L.R. 261 (Sask. Q.B.).
Ochapowace Indian Band v. Saskatchewan (Department of Community Resources), [2008] 3 C.N.L.R. 288 (Sask. C.A.).
R. v. Kapp, 2008 SCC 41, 294 D.L.R. (4th) 1, [2008] 3 C.N.L.R. 347.
R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207.
R. v. Watier (1999), [2000] 2 C.N.L.R. 269 (Sask. Prov. Ct.).
Scrimbitt v. Sakimay Indian Band Council, [2000] 1 F.C. 513, [2000] 1 C.N.L.R. 205 (F.C.T.D.).
Secondary Sources
Bell, Catherine and Karin Buss “The Promise of Marshall on the Prairies: A Framework for Analyzing Unfulfilled Treaty Promises” (2000), 63 Sask. L. Rev. 667-700.
Borrows, John, Recovering Canada: The Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002)
Deveaux, Monique “Conflicting Equalities? Cultural Group Rights and Sex Equality” (2000) 48 Political Studies 522 – 539. Grammond, Sébastien “Disentangling ‘Race’ and Indigenous Status: The Role of Ethnicity” (2008), 33 Queen's L.J. 487 – 518.
Groves, Robert K. and Bradford W. Morse “Constituting Aboriginal Collectivities: Avoiding New Peoples ‘In Between’” (2004), 67 Sask. L. Rev. 257 – 299. McIvor, Sharon Donna “Aboriginal Women Unmasked: Using Equality Litigation to Advance Women’s Rights” (2004) 16 CJWL 106 – 136.
Morse, Bradford W. "The Charter and Aboriginal Peoples after 25 Years: An Uneven Experience" in Mitchell, Peach, Smith and Whyte A Living Tree: The Legacy of 1982 in Canada's Political Evolution (Toronto: LexisNexis Canada, 2007).
Palmater, Pamela D. “An Empty Shell of a Treaty Promise: R. v. Marshall and the Rights of Non-Status Indians” (Spring, 2000) 23 Dalhousie L.J. 102.
Pfefferle, Brian R. “The Indefensibility of Post-Colonial Aboriginal Rights” (2007), 70 Sask. L. Rev. 393 – 423.
Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Supply and Services Canada, 1996). 58
Webber, Jeremy, Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Kingston & Montreal: McGill-Queen’s University Press, 1994)