Alberta (Aboriginal Affairs and Northern Development) v. Cunningham

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham
Collection
Supreme Court Judgments
Date
2011-07-21
Neutral citation
2011 SCC 37
Report
[2011] 2 SCR 670
Case number
33340
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 33340
Decision Content
SUPREME COURT OF CANADA
Citation: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670
Date: 20110721
Docket: 33340
Between:
Her Majesty The Queen in Right of Alberta (Minister
of Aboriginal Affairs and Northern Development) and
Registrar, Metis Settlements Land Registry
Appellants
and
Barbara Cunningham, John Kenneth Cunningham,
Lawrent (Lawrence) Cunningham, Ralph Cunningham,
Lynn Noskey, Gordon Cunningham, Roger Cunningham,
Ray Stuart and Peavine Métis Settlement
Respondents
- and -
Attorney General of Ontario, Attorney General of Quebec,
Attorney General for Saskatchewan, East Prairie Métis
Settlement, Elizabeth Métis Settlement, Métis Nation of Alberta,
Métis National Council, Métis Settlements General Council,
Aboriginal Legal Services of Toronto Inc., Women’s Legal Education
and Action Fund, Canadian Association for Community Living,
Gift Lake Métis Settlement and Native Women’s Association of Canada
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 96)
McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670
Her Majesty The Queen in Right of Alberta (Minister
of Aboriginal Affairs and Northern Development) and
Registrar, Metis Settlements Land Registry Appellants
v.
Barbara Cunningham, John Kenneth Cunningham,
Lawrent (Lawrence) Cunningham, Ralph Cunningham,
Lynn Noskey, Gordon Cunningham, Roger Cunningham,
Ray Stuart and Peavine Métis Settlement Respondents
and
Attorney General of Ontario, Attorney General of Quebec,
Attorney General for Saskatchewan, East Prairie Métis
Settlement, Elizabeth Métis Settlement, Métis Nation of
Alberta, Métis National Council, Métis Settlements General
Council, Aboriginal Legal Services of Toronto Inc., Women’s
Legal Education and Action Fund, Canadian Association for
Community Living, Gift Lake Métis Settlement and Native
Women’s Association of Canada Interveners
Indexed as: Alberta (Aboriginal Affairs and Northern Development) v. Cunningham
2011 SCC 37
File No.: 33340.
2010: December 16; 2011: July 21.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Right to equality — Ameliorative programs — Alberta Metis Settlements Act providing that voluntary registration under the Indian Act precludes membership in a Métis settlement — Whether distinction drawn on enumerated or analogous grounds — Whether program genuinely ameliorative — Whether distinction serves or advances object of ameliorative program — Canadian Charter of Rights and Freedoms, s. 15(2) — Metis Settlements Act, R.S.A. 2000, c. M‑14, ss. 75, 90.
Constitutional law — Charter of Rights — Freedom of association — Alberta Metis Settlements Act providing that voluntary registration under the Indian Act precludes membership in a Métis settlement — Whether legislation violates right to freedom of association — Canadian Charter of Rights and Freedoms, s. 2 (d) — Metis Settlements Act, R.S.A. 2000, c. M‑14, ss. 75, 90.
Constitutional law — Charter of Rights — Right to liberty — Alberta Metis Settlements Act providing that voluntary registration under the Indian Act precludes membership in a Métis settlement — Whether legislation violates right to liberty — Canadian Charter of Rights and Freedoms, s. 7 — Metis Settlements Act, R.S.A. 2000, c. M‑14, ss. 75, 90.
Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples — Indians, Métis and Inuit. In Alberta, the relationship between the government and the Métis has evolved to a point where the Métis and the government entered into negotiations centered on establishing settlement lands for Métis communities, extending self‑government to those communities, and ensuring the protection and enhancement of Métis culture and identity. The negotiations extended to provisions that would allow the Métis to maintain their separate identity as Métis, distinct from Indians. The Metis Settlements Act (“MSA”) was enacted as a result of these negotiations.
The claimants were formal members of a Métis community in Alberta which was established and administered under the terms of the MSA. They opted to register as status Indians in order to obtain medical benefits under the Indian Act . However, the MSA provides that voluntary registration under the Indian Act precludes membership in a Métis settlement. Their membership in the Métis settlement was revoked pursuant to s. 90 of the MSA. The claimants sought a declaration that the denial of membership pursuant to ss. 75 and 90 of the MSA was unconstitutional due to violations of the Charter guarantees of equality, freedom of association and liberty. The chambers judge dismissed these claims. The Court of Appeal allowed the appeal, finding that these provisions were inconsistent with the equality guarantee under s. 15 of the Charter .
Held: The appeal should be allowed and the judgment of the chambers judge affirmed.
The s. 15 claim must be dismissed. The MSA is an ameliorative program protected by s. 15(2) of the Charter . Section 15(2) permits governments to assist one group without being paralyzed by the necessity to assist all, and to tailor programs in a way that will enhance the benefits they confer while ensuring that the protection that s. 15(2) provides against the charge of discrimination is not abused for purposes unrelated to an ameliorative program’s object and the goal of substantive equality. Ameliorative programs, by their nature, confer benefits on one group that are not conferred on others. These distinctions are generally protected if they serve or advance the object of the program, thus promoting substantive equality, even where the included and excluded groups share a similar history of disadvantage and marginalization.
Where the government relies on s. 15(2) , the first question is whether the law makes an adverse distinction against the claimant group on the basis of one of the grounds set out in s. 15(1) or an analogous ground. If so, the next question is whether the distinction is saved by s. 15(2) . The government must show, on the evidence, that the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality, that there is a correlation between the program and the disadvantage suffered by the target group, and that rational means are being used to pursue the ameliorative goal. If these conditions are met, s. 15(2) protects all distinctions drawn on enumerated or analogous grounds that serve and are necessary to the ameliorative purpose, to the extent justified by the object of the ameliorative program. If not, the analysis returns to s. 15(1) and, if substantive discrimination is established, to s. 1.
In this case, and assuming that the distinction between the Métis and status Indians in the MSA is a distinction on an enumerated or analogous ground, the MSA program is a genuinely ameliorative program. Unlike many ameliorative programs, its object is not the direct conferral of benefits on individuals within a particular group, but the enhancement and preservation of the identity, culture and self‑governance of the Métis through the establishment of a Métis land base. The correlation between the program and the disadvantage suffered by the target group, one of the three aboriginal peoples of Canada recognized in s. 35 of the Constitution, is manifest.
As excluding Métis who are also status Indians from formal membership in Métis settlements serves or advances the object of the ameliorative program, s. 15(2) protects the MSA against the charge of discrimination. The Métis have a right to their own culture and drawing distinctions on this basis reflects the Constitution and serves the legitimate expectations of the Métis people. The exclusion corresponds to the historic and social distinction between the Métis and Indians and respects the role of the Métis in defining themselves as a people. Moreover, achieving the object of the program would be more difficult without the distinction. The fact that some people may identify as both Métis and Indian does not negate the general correspondence underlying the distinction between the two groups.
The record does not provide an adequate basis to assess the claimants’ s. 2 (d) argument. The s. 7 claim also fails. There is no need to decide whether place of residence is protected by s. 7 because any impact on liberty was not shown before the chambers judge to be contrary to the principles of fundamental justice. Requiring Aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose whether they wish to fall under the Indian Act or the MSA is not grossly disproportionate to the interest of Alberta in securing a land base for the Métis.
Cases Cited
Referred to: Alberta (Minister of International and Intergovernmental Relations) v. Peavine Metis Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Lovelace v. Ontario (1997), 33 O.R. (3d) 735, aff’d 2000 SCC 37, [2000] 1 S.C.R. 950; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844.
Statutes and Regulations Cited
Act to amend the Indian Act, S.C. 1985, c. 27.
Alberta‑Metis Settlements Accord, 1989.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d), 7 , 15 .
Constitution Act, 1982, ss. 35 , 52 .
Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C‑24, preamble.
Indian Act, R.S.C. 1985, c. I‑5 .
Metis Betterment Act, R.S.A. 1955, c. 202.
Metis Population Betterment Act, S.A. 1938, 2nd Sess., c. 6, s. 2 (a) “Metis”.
Metis Settlements Act, R.S.A. 2000, c. M‑14, ss. 0.1, 1(j) “Metis”, 75, 90, 91, 92, 93.
Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.
Transitional Membership Regulation, Alta. Reg. 337/90.
Authors Cited
Alberta. Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta’s Metis Settlements. Edmonton: Alberta Municipal Affairs, 1984.
Alberta. Report of the Royal Commission Appointed to Investigate the Conditions of the Half‑Breed Population of Alberta. Edmonton: Department of Lands and Mines, 1936.
APPEAL from a judgment of the Alberta Court of Appeal (McFadyen, Costigan and Ritter JJ.A.), 2009 ABCA 239, 8 Alta. L.R. (5th) 16, 457 A.R. 297, 457 W.A.C. 297, 310 D.L.R. (4th) 519, 194 C.R.R. (2d) 205, [2009] 9 W.W.R. 584, [2009] 3 C.N.L.R. 261, [2009] A.J. No. 678 (QL), 2009 CarswellAlta 952, reversing a decision of Shelley J., 2007 ABQB 517, 81 Alta. L.R. (4th) 28, 424 A.R. 271, 160 C.R.R. (2d) 185, [2008] 1 W.W.R. 507, [2007] 4 C.N.L.R. 179, [2007] A.J. No. 913 (QL), 2007 CarswellAlta 1103. Appeal allowed.
Robert J. Normey and David N. Kamal, for the appellants.
Kevin S. Feth, Q.C., and Jeremy L. Taylor, for the respondents.
Janet E. Minor and Mark Crow, for the intervener the Attorney General of Ontario.
Isabelle Harnois, for the intervener the Attorney General of Quebec.
Written submissions only by P. Mitch McAdam and R. James Fyfe, for the intervener the Attorney General for Saskatchewan.
Richard B. Hajduk and Rodger C. Gibbs, for the intervener the East Prairie Métis Settlement.
Thomas R. Owen and Tara Rout, for the intervener the Elizabeth Métis Settlement.
Beverly J. M. Teillet, for the intervener the Métis Nation of Alberta.
Jason Madden, Clément Chartier, Q.C., and Kathy L. Hodgson‑Smith, for the intervener the Métis National Council.
Garry Appelt and Keltie L. Lambert, for the intervener the Métis Settlements General Council.
Jonathan Rudin and Mandy Wesley, for the intervener the Aboriginal Legal Services of Toronto Inc.
Dianne Pothier and Joanna L. Birenbaum, for the intervener the Women’s Legal Education and Action Fund.
Laurie Letheren and C. Tess Sheldon, for the intervener the Canadian Association for Community Living.
Sandeep K. Dhir and Lindsey E. Miller, for the intervener the Gift Lake Métis Settlement.
Mary Eberts, for the intervener the Native Women’s Association of Canada.
The judgment of the Court was delivered by
The Chief Justice —
I. Overview
[1] Section 35 of the Constitution Act, 1982 recognizes three groups of Aboriginal peoples — Indians, Métis and Inuit. The claimants are members of the Métis settlement of Peavine, Alberta; they are also status Indians. The Metis Settlements Act, R.S.A. 2000, c. M-14 (“MSA”), does not permit status Indians to become formal members of any Métis settlement, including Peavine. The claimants now apply for a declaration that this denial of membership violates the Canadian Charter of Rights and Freedoms guarantees of equality, freedom of association and liberty, and is unconstitutional.
[2] I conclude that the claimants have failed to establish that the sections of the MSA that led to their exclusion from the Peavine settlement are unconstitutional.
[3] The claimants assert that the MSA’s exclusion of Métis who are also status Indians from membership in the Peavine Métis Settlement violates the guarantee of equality of s. 15 of the Charter . I conclude that s. 15(2) of the Charter , which permits inequalities associated with ameliorative programs aimed at helping a disadvantaged group, provides a complete answer to this claim. The purpose and effect of the MSA is to enhance Métis identity, culture, and self-governance by creating a land base for Métis. The exclusion of status Indians from membership in the new Métis land base serves and advances this object and hence is protected by s. 15(2) . I also conclude that the claimants have failed to establish that the MSA’s exclusion from membership in the settlement violates freedom of association under s. 2 (d) of the Charter or liberty under s. 7 of the Charter .
[4] I would therefore allow the appeal and affirm the judgment of the chambers judge.
II. The History and Framework of the Program
[5] The Métis were originally the descendants of eighteenth-century unions between European men — explorers, fur traders and pioneers — and Indian women, mainly on the Canadian plains, which now form part of Manitoba, Saskatchewan and Alberta. Within a few generations the descendants of these unions developed a culture distinct from their European and Indian forebears. In early times, the Métis were mostly nomadic. Later, they established permanent settlements centered on hunting, trading and agriculture. The descendants of Francophone families developed their own Métis language derived from French. The descendants of Anglophone families spoke English. In modern times the two groups are known collectively as Métis.
[6] Following the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), which organized the territories recently acquired by Great Britain and reserved certain lands for Indians, the Crown adopted a practice of making treaties with Indian bands. Thus, most Indians on the prairies are Treaty Indians. In exchange for surrendering their traditional lands to the Crown, they were granted reservations and other benefits, such as the right to hunt and trap on Crown land. Today, the welfare of Indians is dealt with under the Indian Act, R.S.C. 1985, c. I-5 , which provides a variety of benefits to status Indians living on and off reserve.
[7] The Crown did not apply to the Métis its policy of treating with the Indians and establishing reservations and other benefits in exchange for lands. In some regions, it adopted a scrip system that accorded allotments of land to individual Métis. However, Métis communities were not given a collective reservation or land base; they did not enjoy the protections of the Indian Act or any equivalent. Although widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities, the law remained blind to the unique history of the Métis and their unique needs.
[8] Governments slowly awoke to this legal lacuna. In 1934, the Alberta legislature established the Ewing Commission, a “Royal Commission Appointed to Investigate the Conditions of the Half-Breed Population of Alberta”. The mandate of the Commission was to inquire into the problems of “health, education, relief and general welfare of [the half-breed] population” and to make recommendations based on its investigation.
[9] The Ewing Commission Report (1936) defined the terms “Metis” or “half-breed” for its own purposes as “a person of mixed blood, white and Indian, who lives the life of the ordinary Indian, and includes a non-treaty Indian” but excluding persons of mixed blood (Indian and white) who had settled down as farmers and who did not need or desire public assistance (p. 4).
[10] The Metis Population Betterment Act, S.A. 1938, 2nd Sess., c. 6, was enacted as a result of the findings and recommendations of the Ewing Commission. The term “Metis” was defined in s. 2(a) of the Act as:
. . . a person of mixed white and Indian blood but does not include either an Indian or a non-treaty Indian as defined in The Indian Act , being chapter 98 of the Revised Statutes of Canada, 1927.
[11] Renamed, The Metis Betterment Act, R.S.A. 1955, c. 202, continued to exclude anyone registered as an Indian under the Indian Act from the definition of “Metis” and expanded the exclusion to encompass anyone with the ability to be registered as an Indian under the Indian Act : s. 2 (a).
[12] The Metis Betterment Act, while according limited statutory recognition to Métis, did not compel the Province of Alberta to establish a land base for Métis communities; nor did it provide adequate support for preservation of the distinct Métis identity and culture. Like the predecessor legislation, it continued to deny the Métis any form of self-government.
[13] The landscape shifted dramatically in 1982, with the passage of the Constitution Act, 1982 . In the period leading up to the amendment of the Constitution, Indian, Inuit and Métis groups fought for constitutional recognition of their status and rights. Section 35 of the Constitution Act, 1982 entrenched existing Aboriginal and treaty rights and recognized three Aboriginal groups — Indians, Inuit, and Métis. For the first time, the Métis were acknowledged as a distinct rights-holding group.
[14] In anticipation of the coming into force of the Constitution Act, 1982 , the Province of Alberta struck a Joint Métis-Government Committee to review The Metis Betterment Act and Regulations. The Committee, comprised of the chair, the late Grant MacEwan, who was chosen by the Métis and government, along with two members from government and two from the Métis community, prepared a report, dated July 12, 1984, setting out its conclusions and recommendations (Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta’s Metis Settlements (“MacEwan Report”)).
[15] The MacEwan Report defined a “Metis” simply as “an individual of aboriginal ancestry who identifies with Metis history and culture” (at p. 12), and recommended legislation to secure a land base and self-government for Métis communities in the province. The Alberta legislature accepted these recommendations in principle by authorizing an amendment to the Constitution of Alberta Amendment Act, 1990, R.S.A. 2000, c. C-24.
[16] A period of negotiation between the Métis of Alberta and the government of Alberta followed. The negotiations centered on establishing settlement lands for Métis communities, extending self-government to those communities, and ensuring the protection and enhancement of Métis culture and identity. Importantly for this case, the negotiations extended to provisions that would allow the Métis to maintain their separate identity as Métis, distinct from Indians.
[17] These negotiations culminated on July 1, 1989, with the Alberta-Metis Settlements Accord. The following year, pursuant to the Accord, Alberta granted the Métis Settlements General Council fee simple title to the lands of the eight Métis communities and passed a suite of legislation to protect Métis rights, including the MSA at issue here.
[18] The constitution of Alberta, which, in the British tradition, is unwritten, was amended to provide constitutional recognition for the changes. The preamble to the Constitution of Alberta Amendment Act, 1990 offers crucial insight into the objects of the legislation:
WHEREAS the Metis were present when the Province of Alberta was established and they and the land set aside for their use form a unique part of the history and culture of the Province; and
WHEREAS it is desired that the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta and, to that end, Her Majesty in right of Alberta is granting title to land to the Metis Settlements General Council; and
WHEREAS Her Majesty in right of Alberta has proposed the land so granted be protected by the Constitution of Canada, but until that happens it is proper that the land be protected by the constitution of the Province; . . .
[19] The Recital to the MSA, added in 2004, contains the following expression of purpose:
0.1 This Act is enacted
(a) recognizing the desire expressed in the Constitution of Alberta Amendment Act, 1990 that the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta,
(b) realizing that the Crown in right of Alberta granted land to the Metis Settlements General Council by letters patent and that the patented land is protected by an amendment to the Constitution of Alberta and by the Metis Settlements Land Protection Act,
(c) in recognition that this Act, the Constitution of Alberta Amendment Act, 1990, the Metis Settlements Land Protection Act and the Metis Settlements Accord Implementation Act were enacted in fulfilment of Resolution 18 of 1985 passed unanimously by the Legislative Assembly of Alberta, and
(d) acknowledging that the Government of Alberta and the Alberta Federation of Metis Settlement Associations made The Alberta‑Metis Settlements Accord on July 1, 1989.
[20] The MSA defined “Metis” for its purposes as “a person of aboriginal ancestry who identifies with Metis history and culture” (s. 1(j)). Consistent with the negotiations that preceded it and the desire to preserve Métis culture and identity, the MSA limited the scope for status Indians to be recognized as members of settlement communities. Section 75 provides that persons registered as Indians or Inuit may not apply for membership in a Métis settlement, unless certain conditions are met and membership is authorized by a settlement bylaw. Because its provisions are central to this case, I set out s. 75 in relevant part:
75(1) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement is not eligible to apply for membership or to be recorded as a settlement member unless subsection (2) or (3.1) applies.
(2) An Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if
(a) the person was registered as an Indian or an Inuk when less than 18 years old,
(b) the person lived a substantial part of his or her childhood in the settlement area,
(c) one or both parents of the person are, or at their death were, members of the settlement, and
(d) the person has been approved for membership by a settlement bylaw specifically authorizing the admission of that individual as a member of the settlement.
(3) If a person who is registered as an Indian under the Indian Act (Canada) is able to apply to have his or her name removed from registration, subsection (2) ceases to be available as a way to apply for or to become a settlement member.
(3.1) In addition to the circumstances under subsection (2), an Indian registered under the Indian Act (Canada) or a person who is registered as an Inuk for the purposes of a land claims settlement may be approved as a settlement member if he or she meets the conditions for membership set out in a General Council Policy.
. . .
[21] Additionally, the Transitional Membership Regulation, Alta. Reg. 337/90, permitted those registered on a settlement membership list upon the entry into force of the MSA to maintain their membership even if they were already registered or were eligible to register as Indians under the Indian Act . Persons registering as Indians after the coming into force of the MSA on November 1, 1990, were not covered by these grandfathering provisions.
[22] Section 90 of the MSA confirms that voluntary registration under the Indian Act precludes membership in a Métis settlement unless a General Council Policy provides otherwise:
90(1) Unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if
(a) the person voluntarily becomes registered as an Indian under the Indian Act (Canada), or
(b) the person becomes registered as an Inuk for the purpose of a land claims agreement.
(2) On receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the Settlement Members List.
No General Council Policy addressing settlement membership for status Indians has been passed.
[23] A settlement member who loses membership under these provisions loses any interest in the settlement land, but may continue to reside on a Métis settlement unless expelled. Sections 91 and 93 provide:
91(1) When the membership of a settlement member terminates or is terminated, the member
(a) loses any rights gained by his or her former membership to reside on or occupy patented land, but
(b) does not lose any right to reside on patented land acquired by or under this or any other enactment, a General Council Policy or a settlement bylaw.
(2) The termination of settlement membership does not affect any right acquired by the spouse or adult interdependent partner or minor children of the member to continue to reside on patented land.
(3) A settlement council and a person whose membership has been terminated may agree on the compensation to be paid to the former settlement member for improvements made on land held by the member and if they cannot agree either of them may refer the matter to the Appeal Tribunal.
. . .
93(1) A person who is permitted to reside in a settlement area under section 92 is entitled to continue to reside in the area unless the settlement council, for just cause, orders the person expelled from the settlement area.
(1.1) A settlement council may order a person who is not permitted to reside in the settlement area expelled from the settlement area if the person refuses to leave the settlement area on the request of the settlement council.
(2) No order can be made under subsection (1) or (1.1) unless the person concerned has been given an opportunity to tell the settlement council why he or she should be able to remain in the settlement area.
[24] While the negotiations proceeded with the Alberta Métis to achieve a land base, self-governance and support for Métis culture and identity, an important change was made to broaden the definition of who could register as an Indian under the federal Indian Act . In An Act to amend the Indian Act, S.C. 1985, c. 27 (Bill C-31), Parliament reinstated the right to Indian status for many Métis settlement members who had been previously denied status, including the claimants. Prior to this amendment, Indian women who married Métis men lost their Indian status and could not pass it to their descendants. The new act went some way towards correcting this injustice, recognized the descendants of these unions, and gave them the option of registering as status Indians.
[25] The claimants, members of the Métis settlement of Peavine, opted to register as status Indians in order to obtain medical benefits under the Indian Act . They did so outside the limited window provided by the Transitional Membership Regulation. As a result, the Registrar of the Métis Settlements Land Registry revoked their membership in the settlement of Peavine, under s. 90 of MSA. They sued for a declaration that s. 90 and its companion provision, s. 75, are inconsistent with ss. 15 , 2 (d) and 7 of the Charter in a manner that cannot be justified under s. 1 and are thus null and void under s. 52 of the Constitution Act, 1982 .
[26] Underlying this litigation is the suggestion that the manner in which the Cunninghams’ registration was revoked was procedurally unfair. The list that the Peavine Council submitted to the Registrar of the Métis Settlements Land Registry for revocation of membership did not include all of the members who had obtained Indian status, but only the members of the Cunningham family. Following related proceedings (Alberta (Minister of International and Intergovernmental Relations) v. Peavine Metis Settlement, 2001 ABQB 165, [2001] 3 C.N.L.R. 1), the Registrar removed the claimants from the Peavine membership list on May 10, 2001. Though bad faith and improper motivations were alleged against the then Council, no judicial review or other action was commenced on that basis. Accordingly, the matter of how the revocation proceeded is not before this Court.
III. The Rulings in the Alberta Courts
A. The Chambers Judge
[27] The chambers judge, Shelley J., dismissed the claimants’ application (2007 ABQB 517, 81 Alta. L.R. (4th) 28). She accepted the claimants’ view that the exclusion from membership was based on the analogous ground of registration as a status Indian. She concluded, however, that the MSA did not violate the equality provision of s. 15(1) of the Charter because the relevant contextual factors did not establish that ss. 75 and 90 resulted in the stereotyping or disadvantage required to show discrimination. She accepted that the provisions might cause the claimants to lose their right to reside on the Peavine settlement without having obtained corresponding benefits under the Indian Act , and that even if they were able to continue to reside on the land under s. 92 , as it appeared they currently did, they would have no say in settlement governance or the right to vote. However, they would have acquired benefits available to them under the Indian Act as status Indians.
[28] Although she did not conduct an analysis under s. 15(2) of the Charter (her decision was before R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, which clarified the steps of the s. 15(2) analysis), the chambers judge concluded that the ameliorative purpose and effect of the MSA supported the exclusion under ss. 75 and 90 of Métis who registered as status Indians. In her view, the purposes of enhancing Métis culture and identity, as well as the preservation of land rights and self-governance, were furthered by the exclusion of status Indians, subject to any General Council Policy. While the loss of the right to participate in the governance of the Métis community with which they had been associated on a long-term basis was a severe consequence, this was offset by the fact that by registering as Indians under the Indian Act , the claimants had chosen to receive other rights and benefits.
[29] The chambers judge also dismissed the Cunninghams’ s. 2 (d) claim for breach of freedom of association. Section 2 (d) of the Charter , she held, protects association only for the purpose of protecting fundamental freedoms, not access to a particular statutory regime. The privilege of membership does not exist independently of the legislative regime established by the MSA. Moreover, the claimants had not shown substantial interference with their associational right, in the sense that the MSA made it next to impossible for them to pursue common goals. It was their decision to register as Indians, not state action, that resulted in any inability to exercise fundamental freedoms.
[30] Finally, the chambers judge found no violation of s. 7 of the Charter . Even if the MSA limited the claimants’ liberty by jeopardizing their right to reside on the Peavine settlement, the deprivation was not arbitrary or grossly disproportionate, and hence not contrary to the principles of fundamental justice, as required by s. 7 . She found that “[r]equiring aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose which legislative scheme they wish to fall under — the Indian Act or the MSA — is not a requirement which is grossly disproportionate to the interest of Alberta in securing a land base for the Métis” (para. 130).
B. The Court of Appeal
[31] The Court of Appeal concluded that ss. 75 and 90 were inconsistent with the equality guarantee in s. 15 of the Charter and thus invalid, and directed registration of the claimants as members of the Peavine settlement (2009 ABCA 239, 8 Alta. L.R. (5th) 16).
[32] As there was no dispute that registration as a status Indian was an analogous ground under s. 15(1) of the Charter , the court, proceeding post-Kapp, moved to s. 15(2) , which provides that governments may adopt ameliorative programs that might otherwise be viewed as conferring benefits unequally without violating s. 15 . It held that, for the exclusion of status Indians to be saved by s. 15(2) by virtue of having an ameliorative or remedial purpose, it must be rationally connected to the enhancement and preservation of Métis culture and self-governance and the securing of a Métis land base. This was not established, in the court’s view. Noting that the exclusion from membership of people who had identified with and lived in the Métis culture for all or most of their lives was “relatively arbitrary”, the court concluded that “[i]t is difficult to imagine that such exclusion is in furtherance of the enhancement and preservation of Métis culture, identity and self-governance” (para. 28). Moreover, since Métis membership is rooted in Aboriginal ancestry, removal of membership is at odds with the goal of enhancing Métis culture. There was no evidence that settlements were being overrun by status Indians or that the number of status Indians seeking settlement membership would impair the aims of the MSA. Finally, denying status Indians membership because of registration under the Indian Act constituted a punishment for behaviour — registering as status Indians — which should not be protected by s. 15(2) . The court concluded that exclusion was not rationally connected to advancing a legislative purpose, and was not saved by s. 15(2) .
[33] Returning to s. 15(1) , the Court of Appeal held that the law stereotyped people like the claimants as being “less Métis” because of their registration under the Indian Act in a way that did not correspond to their actual circumstances (para. 43). The court concluded that they “are vulnerable to both a unique disadvantage and to stereotyping . . . resulting in differential treatment and discrimination” (para. 45).
[34] The Court of Appeal declined to rule on whether freedom of association under s. 2 (d) was violated, as there was insufficient evidence and argument on the issue. It also declined to rule on the s. 7 claim.
[35] Accepting the government’s claimed purpose — promoting the Métis culture, protecting and distinguishing it from Indian culture, furthering self-governance, and preserving a Métis land base — the court held that there was no pressing and substantial objective capable of justifying the infringement of s. 15(1) of the Charter caused by the exclusion of the claimants and other status Indians from settlement membership under ss. 75 and 90 of the MSA. The promotion of Métis culture could not serve as such an objective, since there was no evidence to support the view that the provisions were meant to help protect and distinguish Métis culture from Indian culture. Nor could the goal of furthering self-governance serve as an objective because there was no evidence that the provisions provide Métis settlements with means of controlling their membership.
[36] The Court of Appeal added that, had a pressing and substantial objective been established, exclusion would still not be justified under s. 1 because ss. 75 and 90 were neither rationally connected to the objective nor minimally impairing. The absolute removal of membership went beyond what was necessary to achieve the goals of distinguishing Métis culture from Indian culture and self-governance, in the court’s view. Consequently, the membership provisions could not be saved by s. 1, and the appeal was allowed.
IV. The Equality Claim Under Section 15 of the Charter
[37] Section 15 of the Charter states:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
A. The Purpose of Section 15(2)
[38] Section 15 of the Charter protects against discriminatory laws and government actions. Its goal is to enhance substantive equality. It does this in two ways.
[39] First, s. 15(1) is aimed at preventing discrimination on grounds such as race, age and sex. Laws and government acts that perpetuate disadvantage and prejudice, or that single out individuals or groups for adverse treatment on the basis of stereotypes, violate s. 15(1) and are invalid, subject to justification under s. 1 of the Charter : Kapp; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396.
[40] Second, s. 15(2) is aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. It does this by affirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.
[41] The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Ameliorative programs function by targeting specific disadvantaged groups for benefits, while excluding others. At the time the Charter was being drafted, affirmative action programs were being challenged in the United States as discriminatory — a phenomenon sometimes called reverse discrimination. The underlying rat