Matson et al. v. Indian and Northern Affairs Canada

Matson et al. v. Indian and Northern Affairs Canada
Collection
Canadian Human Rights Tribunal
Date
2013-05-24
Neutral citation
2013 CHRT 13
File number(s)
T1444/7009
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Decision status
Final
Grounds
Family Status
National or Ethnic Origin
Sex
Decision Content
Between:
Jeremy Eugene Matson, Mardy Eugene Matson and Melody Katrina Schneider
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Indian and Northern Affairs Canada
(now Aboriginal Affairs and Northern Development Canada)
Respondent
Decision
Member: Edward P. Lustig
Date: May 24, 2013
Citation: 2013 CHRT 13
Table of Contents
I.......... Complaints. 1
II........ Background. 1
III....... Bifurcated Hearing. 4
IV....... Positions of the Parties. 5
A. The Complainants. 5
B. The Commission. 7
C. The Respondent 10
V........ Analysis. 13
A. Is the complaint a challenge to legislation and nothing else?. 13
B. Is the Tribunal bound to follow the Federal Court of Appeal decision in Murphy, and dismiss the complaint?. 19
(i) Supreme Court of Canada jurisprudence regarding the interpretation and primacy of human rights laws. 20
(ii) Other federal case law recognizing the primacy of human rights legislation. 32
(iii) Provincial case law recognizing the primacy of human rights laws. 42
(iv) Section 2 and subsections 49(5) and 62(1) of the Act 47
(v) The former section 67 of the Act 50
(vi) Conclusion: the complaint is dismissed. 52
C. Does the complaint impugn a discriminatory practice in the provision of services customarily available to the general public that could be the subject of a finding of prima facie discrimination under section 5 of the Act?. 54
I. Complaints [1] The Complainants, Jeremy and Mardy Matson and Melody Schneider, who are siblings, each filed a complaint pursuant to section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [the Act]. The complaints are made against Indian and Northern Affairs Canada, now known as Aboriginal Affairs and Northern Development Canada (the Respondent).
[2] The Complainants allege discrimination on the grounds of race, national or ethnic origin, sex and family status based on the manner in which they were registered as Indians under the Indian Act, R.S.C., 1985, c. I-5 [the Indian Act]. The Complainants submit that, due to their matrilineal Indian heritage, they continue to be treated differently in their registration under subsection 6(2) of the Indian Act, when compared to those whose lineage is paternal and are registered under subsection 6(1). Namely, registration under subsection 6(2) does not allow the Complainants to pass on their status to their children.
II. Background [3] The Tribunal had the benefit of an Agreed Statement of Facts in this case. Along with the submissions of the parties, the background of the present complainants can be summarized as follows.
[4] The Complainants have one Indian grandparent: a woman who lost status when she married a non-Indian before 1985, and who regained her status under paragraph 6(1)(c) of the Indian Act with the passage of An Act to Amend the Indian Act, R.S.C. 1985, c. 32 (1st Supp.), in 1985. By virtue of those same amendments, the children of her marriage with a non-Indian man (one of whom was the Complainants’ father, Eugene Matson) were deemed eligible for status under subsection 6(2) of the Indian Act. Since the 1985 amendments only gave their father status under subsection 6(2), and since their mother was a non-Indian, the Complainants were not, at the time of the filing of these complaints, entitled to any status under the Indian Act. Subsection 6(2) of the Indian Act does not allow a person to pass his or her status to children with non Indians. As a result, the children the Complainants’ have had with non-Indians since 1985 were also not entitled to status.
[5] In November and December 2008, the Complainants filed the present complaints. Along with their complaints, they prepared and delivered a chart that sets out their family and status history as compared to a hypothetical family history that is identical in all respects, save for the sex of their Indian grandparent. In other words, in the hypothetical family history, their Indian grandparent is male instead of female. All dates of births, marriages and deaths are consistent in both scenarios. As shown in the chart, the Complainants in the hypothetical patrilineal scenario would have status under subsection 6(1) of the Indian Act. As a result, they would be able to pass 6(2) status to their children.
[6] On April 6, 2009, the British Columbia Court of Appeal rendered its decision in the matter of McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 [McIvor], wherein it declared paragraphs 6(1)(a) and 6(1)(c) of the Indian Act to be of no force or effect as these provisions infringed the right to equality under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter]. The Court found the infringement could not be justified under section 1 of the Charter. The declaration was suspended for one year to allow Parliament time to review and consider new amendments to the Indian Act.
[7] On November 9, 2009, pursuant to section 49 of the Act, the Canadian Human Rights Commission (the Commission) requested the Tribunal institute an inquiry into the Complainants’ complaints. Under subsection 40(4) of the Act, the Commission also requested the Tribunal institute a single inquiry into these complaints as it was satisfied that they involve substantially the same issues of fact and law.
[8] On November 2, 2010, the Tribunal adjourned the proceedings in this matter. The British Columbia Court of Appeal had extended the deadline for Parliament to comply with its decision in McIvor and legislation was pending before Parliament in response thereto (see 2010 CHRT 28).
[9] On January 31, 2011, the Gender Equity in Indian Registration Act, S.C. 2010, c. 18 [the GEIRA], came into effect. Among other things, the GEIRA amended the registration provisions of the Indian Act by adding a new paragraph 6(1)(c.1), which adds an entitlement to be registered for certain persons whose mothers had lost status by marrying non-Indians before April 17, 1985.
[10] As a consequence of the passage of the GEIRA, (i) Eugene Matson, the Complainants’ father, was deemed to have been entitled to registration under the new paragraph 6(1)(c.1) of the Indian Act, and (ii) the Complainants became eligible to be registered under subsection 6(2) of the Indian Act.
[11] In May and June 2011, the Complainants were registered as Indians under subsection 6(2) of the Indian Act. While they also applied for their children to be registered, the Indian Registrar determined there is no provision in the Indian Act to allow for the registration of a person when one of the parents is registered under subsection 6(2) and the other parent is not an Indian as defined by the Indian Act.
[12] Following the enactment of the GEIRA and the Complainants’ registrations under subsection 6(2) of the Indian Act, on September 27, 2011, the Tribunal ruled that it would be appropriate for amended Statements of Particulars to be submitted. The Tribunal determined that, while the complaints respecting the Complainants’ registration under the Indian Act were now moot since they had now been registered, the part of the complaints relating to the opportunity to pass status on to any children with non-Indians was still live (see 2011 CHRT 14).
[13] On January 19, 2012, the Complainants filed a Notice of Constitutional Question (NCQ). The Complainants’ NCQ sought to challenge the constitutional validity of section 6 of the Indian Act under the Charter. The basis of the Charter challenge was that section 6 of the Indian Act is in contravention of sections 2 and 3 of the Act and sections 1 and 15(1) of the Charter, and should be struck down and declared to be of no force and effect.
[14] On July 30, 2012, the Respondent brought a motion for an order striking out the whole of the Complainants’ NCQ.
[15] On September 6, 2012, the Tribunal allowed the Respondent’s motion and ordered the whole of the Complainants’ NCQ to be struck out. The Tribunal determined that the Complainants’ NCQ attempted to adjudicate the same facts alleged to be in contravention of the Act under the Charter. As section 50(2) of the Act only provides the Tribunal with the power to decide all questions of law “necessary to determining the matter”, namely whether a discriminatory practice has occurred within the meaning of sections 5 to 14.1 of the Act, the Tribunal found the constitutional question was not linked to determining whether a discriminatory practice has occurred within the meaning of the Act. It was a separate question of law altogether, unrelated to the Act’s statutory mandate in this case (see 2012 CHRT 19).
[16] Following the above substantive and procedural background, the Tribunal held a hearing in this matter on January 30th and 31st, 2013 in Kelowna, British Columbia.
III. Bifurcated Hearing [17] Pursuant to Rule 5(3)(c) of the Tribunal’s Rules of Procedure (03-05-04), and upon the consent of the parties, the hearing of this matter is proceeding in two stages. The hearing of the first stage of the complaint on January 30th and 31st, 2013 was to address the following questions:
(a) Is the complaint a challenge to legislation and nothing else?
(b) Is the Tribunal bound to follow the Federal Court of Appeal decision in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7, leave to appeal to S.C.C. dismissed (34706) [Murphy], and dismiss the complaint?
(c) Does the complaint impugn a discriminatory practice in the provision of services customarily available to the general public that could be the subject of a finding of prima facie discrimination under section 5 of the Act?
[18] Before proceeding to the second stage of the hearing, I will address the above mentioned questions.
IV. Positions of the Parties A. The Complainants [19] The Complainants submit that registration as an Indian under the Indian Act is a “service” under section 5 of the Act. They claim this service includes the determination of who is and who is not entitled to be registered as an Indian.
[20] According to the Complainants, registration as an Indian does not happen automatically, as you must apply. This includes filling out an application form, proving ancestry information, and submitting supporting documentation. Therefore, the Complainants claim the Respondent creates a service relationship between it and those applying for Indian status under the Indian Act; and, because of that relationship, section 5 of the Act applies to section 6 of the Indian Act.
[21] With respect to Murphy, the Complainants argue the decision attempts to limit the scope of the Act contrary to the principles enunciated by the Supreme Court of Canada for interpreting human rights legislation (Winnipeg School Division No. 1 v. Craton, [1985] 2 SCR 150 [Craton]; CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 [Action Travail des Femmes]; Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 [Andrews]; and, Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 [Tranchemontagne]. Additionally, the Complainants are of the view that the Tribunal is bound, under the doctrine of stare decisis, to follow these decisions of the Supreme Court of Canada and, therefore, should not consider the Federal Court of Appeal’s decision in Murphy.
[22] The Complainants are of the view that the Respondent’s position, that this complaint should be dismissed because it does not arise in the provision of a “service”, is contradictory to Canada’s membership in the United Nations and its commitments under the Universal Declaration of Human Rights, GA Res. 217(III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71, and the United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, UN GAOR, 61st Sess., Supp. No. 49 Vol. III, UN Doc. A/61/49 (2007). According to the Complainants, Canada must abide by these international commitments to guide its domestic laws, tribunals and obligations to its citizens.
[23] The Complainants add that Canada has responded domestically to its international commitments by repealing section 67 of the Act (Bill C-21, An Act to amend the Canadian Human Rights Act, 2nd Sess., 39th Parl., 2008 [Bill C-21]). Bill C-21, at section 1.1, also included recognition for existing Aboriginal and treaty rights; and, at section 1.2, provided for the Tribunal to have regard for First Nations legal traditions and customary laws when interpreting and applying the Act in relation to complaints made against a First Nation government. According to the Complainants, the intent and purpose behind the repeal of section 67, and the inclusion of sections 1.1 and 1.2 in Bill C-21, was to open up the whole of the Indian Act to full scrutiny under the Act.
[24] On this basis, the Complainants also distinguish some of the cases relied upon by the Respondent for the proposition that legislation cannot be challenged under the Act, namely Forward v. Canada (Citizenship and Immigration), 2008 CHRT 5 [Forward], Canada (Attorney General) v. McKenna, [1999] 1 FC 401 [McKenna], and Canada (Attorney General) v. Bouvier, 1998 CanLII 7409 (FCA) [Bouvier]. According to the Complainants, the repeal of section 67 is the distinguishing factor between the current complaints and those cases, which were decided prior to the repeal.
[25] Finally, the Complainants submit the complaints should proceed because of their significant public impact. In the Complainants’ view, the amendments to the Indian Act brought about by the GEIRA did not redress or rectify the distinction between the descendants of Indian women and men. Both before and after the passing of the GEIRA, the Indian Act does not provide them with section 6(1) status, as would have been the case in their hypothetical comparative patralineal scenario. As such, they are still unable to pass their status along to their children with non-Indians.
[26] According to the Complainants, Parliament had an opportunity to address gender based discrimination in the GEIRA, but rejected an amendment proposed by the House of Commons Standing Committee on Aboriginal Affairs and Northern Development that would have provided that “any person born prior to 17 April 1985 and is a direct descendant of a person registered or entitled to be registered under the Indian Act may also be so entitled” (Library of Parliament, Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act by Mary C. Hurley & Tonina Simeone, Social Affairs Division, Parliamentary Information and Research Service (Ottawa: Library of Parliament, 2010) at 1). This amendment was ruled to exceed the scope of the bill and was therefore inadmissible (Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act at 1).
[27] The Complainants state that the total number of individuals potentially impacted by the complaint (maternal grandchildren and their offspring) can be estimated at 108,000-130,500.
B. The Commission [28] The Commission submits this complaint is not a challenge to legislation. It challenges the act of applying the discriminatory registration provisions of the Indian Act to members of the public. However, the Commission does agree that the impugned provision required the Respondent’s officials to reach the conclusions they did concerning the registration entitlements of the Complainants.
[29] According to the Commission, determining eligibility for registration is a “service” within the meaning of section 5 of the Act: registration as an Indian provides tangible and intangible benefits, and is held out to the public accordingly, in the context of a public relationship. Furthermore, persons seeking to be registered under the Indian Act are required to submit applications to the Office of the Indian Registrar.
[30] That said, the Commission also submits that the Act allows for complaints challenging the discriminatory impact of other federal laws. It argues Supreme Court of Canada case law states human rights legislation renders inconsistent laws inoperable (Insurance Corporation of British Columbia v. Heerspink, [1982] 2 SCR 145 [Heerspink]; Craton; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 [Larocque]; and, Tranchemontagne). According to the Commission, where there is a conflict between human rights law and other legislation, the human rights law will govern as a quasi-constitutional statement of public policy, and will supersede inconsistent legislation, unless the legislature has clearly stated otherwise in express and unequivocal language. In the circumstances of this case, the Commission submits that the Tribunal must give due regard to the Supreme Court’s pronouncements concerning the effect and status of human rights laws.
[31] With respect to Murphy, the Commission acknowledges that on its face, this decision would be a full answer to the present complaints, which are aimed at government conduct that was mandatory under the registration provisions of the Indian Act. However, up until the decision in Murphy, the Commission submits that a long line of case law within the federal human rights system had recognized the Act as having primacy over other inconsistent laws, consistent with the principles set out in cases like Heerspink, Craton, Larocque and Tranchemontagne (Canada (Attorney General) v. Druken, [1989] 2 FC 24 (C.A.) [Druken (FCA)]; Gonzalez v. Canada (Employment and Immigration Commission), [1997] 3 FC 646 [Gonzalez]; McAllister-Windsor v. Canada (Human Resources Development), 2001 CanLII 20691 (CHRT) [McAllister-Windsor]; Canada (Attorney General) v. Uzoaba, [1995] 2 FC 569 [Uzoaba]; the dissenting reasons of Dickson C.J. and Lamer J. in Bhinder v. CN, [1985] 2 SCR 561 [Bhinder]; and, the dissenting reasons of McLachlin J. and L’Heureux-Dubé J. in Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854 [Cooper]).
[32] According to the Commission, in Murphy the Court did not apply its own jurisprudence describing the limited circumstances in which it is appropriate for one panel to overturn a previous decision by another panel. Furthermore, the Federal Court of Appeal did not deal with or mention contrary Supreme Court of Canada case law like Heerspink, Craton, Larocque and Tranchemontagne. In the circumstances, the Tribunal is faced with two contradictory lines of authority from higher decision-makers. The Commission submits that under the principles of vertical stare decisis the Tribunal must follow the principles established by the Supreme Court of Canada. The Commission adds, while an application for leave to appeal Murphy was dismissed by the Supreme Court of Canada, this does not indicate agreement with the decision below.
[33] According to the Commission, following the Supreme Court of Canada authorities would also keep the Tribunal’s jurisprudence in line with other decisions from human rights tribunals and courts from across the country that have found discriminatory legislation to be inoperable.
[34] The Commission also points to the wording and legislative history of several current provisions of the Act as demonstrating Parliament’s intent that the Act apply to the wording of other federal legislation: section 2 and subsections 49(5) and 62(1). According to the Commission, the presumption against tautology dictates that Parliament did not speak in vain when it enacted subsections 49(5) and 62(1) of the Act, and that applying the Act to the wording of other federal laws was therefore Parliament’s intention. The Commission notes, the Federal Court of Appeal did not refer to section 2, nor subsections 49(5) or 62(1), in its decision in Murphy.
[35] The Commission also points to the wording and legislative history of the former section 67 of the Act. According to the Commission, the former section 67 functioned as a statutory exception to the general principle that human rights laws have primacy. The existence of section 67 implied that, without the exemption, the Act would have applied to and affected any discriminatory provisions in the Indian Act. In fact, the Commission submits that Parliament enacted the former section 67 for the purpose of shielding the registration provisions of the Indian Act from review under the Act. Therefore, in repealing section 67 in 2008, Parliament intended to open the door to human rights complaints challenging discriminatory aspects of those same provisions.
[36] Again, the Commission argues that the presumption against tautology arises with respect to section 67 and its repeal, and that the Respondent’s position, that the registration provisions of the Indian Act cannot be challenged under the Act, violates this presumption. Therefore, to give effect to Parliament’s intent, the Tribunal must accept that the granting of Indian status is a “service customarily available to the general public” within the meaning of section 5 of the Act.
C. The Respondent [37] The Respondent submits that in any complaint it is critical for the Tribunal to properly understand and characterize what the complaint is about. To the extent that the Commission and Complainants attempt to characterize the complaint as involving the review and processing of applications for registration by officials in the Office of the Indian Registrar, the Respondent argues the Tribunal should reject such a characterization. The arguments and supporting evidence are not directed at the conduct of officials in the Office of the Indian Registrar, the exercise of discretion, or at the implementation of departmental policies and practices. According to the Respondent, in reviewing the Complainants’ applications for registration as Indians, the officials did nothing more than apply categorical statutory criteria to undisputed facts. Therefore, according to the Respondent, the complaints are directed solely at an Act of Parliament and nothing else.
[38] The Respondent also points to the Complainants’ position regarding the changes to the Indian Act following the GEIRA. According to the Respondent, the fact that a legislative amendment could have potentially resolved the complaint, and not a change in policy or other factors, further indicates that the complaints are directed at legislation. Furthermore, the Complainants filed a Notice of Constitutional question in this case challenging the constitutional validity of section 6 of the Indian Act. In the Notice, they stated “Bill C-3 failed to properly remedy the discrimination found unconstitutional in McIvor”. In the Respondent’s view, this is another example which demonstrates that the complaints are based on the wording of legislation.
[39] As a result of the application of Murphy, and other decisions such as Forward, McKenna and Bouvier, the Respondent submits the complaints should be dismissed. According to the Respondent, those decisions indicate that the Act does not provide for the filling of a complaint against legislation.
[40] As opposed to the Supreme Court of Canada cases relied upon by the Complainants and Commission, the Respondent argues that the decision in Murphy specifically dealt with and interpreted the Act. The Respondent adds, the interpretation of particular legislative provisions of the Act by a higher court takes precedence over extrinsic statutory interpretation evidence, such as the sources put forward by the Commission. In this regard, according to the Respondent, it is not open to the Tribunal to overturn a decision of the Federal Court of Appeal, because of the doctrine of stare decisis, and it would be an error for the Tribunal to do so.
[41] Even if the Act did provide for the filling of a complaint against an Act of Parliament, the Respondent claims the complaint should still be dismissed because it does not implicate a “service”. Following the reasoning of the Tribunal in Forward, the Respondent argues that entitlement to registration as an Indian is (i) a distinct status granted by the state which has
(ii) constitutional dimensions and (iii) to characterize it as a mere service would be to ignore its fundamental role in defining the relationship between individuals and the state. In the Respondent’s view, while the processing of applications for registration may constitute a “service”, Parliament’s criterion for identifying the population enjoying this relationship is not. The Respondent adds, statutory interpretation of the term “services”, by giving the term its plain meaning and reading it in conjunction with the rest of section 5 and the entire scheme of the Act, leads to the conclusion that entitlement to registration is not a service.
[42] The Respondent also submits the Commission’s position is flawed considering the scope of the Act’s analytic framework. If the Tribunal were to accept that there is a “service” in this case, it would put the government in the position of having to justify its legislation on the basis of “reasonable accommodation” to the point of “undue hardship” and limited by subsection 15(2) of the Act to considerations of “health, safety and cost”. According to the Respondent, the legislative provisions at issue resulted from years of study, debate and consultation with Aboriginal groups. They were a balanced compromise between competing interests, and take into account complex demographic and historical considerations. Considerations of health and safety are not part of those factors. This leaves only one possible consideration: cost. According to the Respondent, it is loathe to advance a financial undue hardship justification given its reductive, dehumanizing nature, and the fact that non-monetary factors were important and powerful factors in the choice made by Parliament to delineate who is a status Indian.
[43] The Respondent adds, in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 [Hutterian Brethren], the Supreme Court of Canada indicated that the reasonable accommodation standard is not appropriate for evaluating laws of general application and is only helpful where a government action or administrative practice is impugned. Contrary to the Complainants and Commission’s argument that Murphy is inconsistent with Supreme Court of Canada jurisprudence, the Respondent submits that Hutterian Brethren supports the Federal Court of Appeal’s decision in Murphy that the Act does not provide for the filing of a complaint directed solely at an Act of Parliament.
[44] Therefore, the Respondent argues the Act does not provide the scope to properly assess certain kinds of government decision-making and action. In the present situation, the Respondent is of the view that the government is entitled to justify the law not by showing reasonable accommodation, but by a section 1 analysis under the Charter.
V. Analysis A. Is the complaint a challenge to legislation and nothing else? [45] Section 5 of the Act provides:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
[46] The first step to be performed in applying section 5 is to determine whether the actions complained of are “in the provision of goods, services, facilities or accommodation” (see Watkin v. Canada (Attorney General), 2008 FCA 170, at para. 31 [Watkin]). According to the Complainants and the Commission, the actions complained of in this case occurred in the provision of “services”. Within the meaning of section 5 of the Act, “services” “…contemplate something of benefit being “held out” as services and “offered” to the public” (Watkin at para. 31). Neither the Complainants nor the Commission took issue with the general criteria currently used to determine whether conduct is with respect to a “service” within the meaning of section 5 of the Act.
[47] On the other hand, the Respondent argues the present complaint does not take issue with the provision of any “services”; but, rather, is a strict challenge to legislation, the Indian Act. In Murphy, the Federal Court of Appeal held that “the [Act] does not provide for the filing of a complaint directed against an act of Parliament…” (at para. 6). Relying on the Tribunal’s decision in Forward, and subsection 40(1) (“…which authorizes the filing of complaints…”) and sections 5 to 14.1 of the Act (“…which sets out the “discriminatory practices” against which complaints may be directed…”), the Federal Court of Appeal found that attacks “…aimed at the legislation per se, and nothing else” fall “…outside the scope of the [Act]…” (see Murphy at para. 6). With reference to the Federal Court’s decision in Wignall v. Canada (Department of National Revenue (Taxation)), 2003 FC 1280, the Federal Court of Appeal added: “an attempt pursuant to the [Act] to counter the application of [legislation] based solely on its alleged discriminatory impact on the complainant, could not succeed; only a constitutional challenge could yield this result” (Murphy at para. 6).
[48] It is within the above context that the Tribunal seeks to determine whether the present complaint is a challenge to legislation and nothing else; or, whether a discriminatory practice in the provision of services, under section 5 of the Act, is impugned.
[49] In his Complaint Form, dated November 25, 2008, Jeremy Matson describes his complaint as follows:
I believe that the [2nd Generation cut off rule] resulting from Bill C-31 is discriminatory towards me and my siblings based both the prohibited grounds of family status and gender under the Canadian Human Rights Act in that Bill C-31 continues to distinguish and discriminate against the descendants of Indian women who married non-Indian men by limiting the extension of status eligibility to a certain tier of lineage that would not apply to male Indians of the same heritage.
To clarify, if my grandmother had married an Indian, she would not have been disenfranchised and both my father and me would have been eligible for full status as Indians.
(at p.3)
[50] Following the enactment of the GEIRA and the Complainants’ registrations under subsection 6(2) of the Indian Act, the Complainants revised their Statement of Particulars. Therein, the Complainants described their complaint as follows:
Although the Complainants are now registered as status Indians, the section under which they are registered does not allow them to pass on their status to their children equally to those status Indians in the comparator group.
The Complainants were previously denied registration for Indian status and the rights and benefits conferred with such status. It is the Complainants’ position that such previous denial and now the s. 6(2) Indian status that has been granted to them have not put the Complainants on the same footing as the paternal Indian grandchildren; this distinction is in contravention of section 5 of the Act.
The nature of this discrimination arises out of the system of registration established pursuant to April 17, 1985 known as Bill C-31 and the consequent amendments to the Indian Act of April 17, 1985 and the current Gender Equity in the Indian Registration Act (Bill C-3/McIvor) as of January 31, 2011. Under the 1985 registration, Nora Johnson was unable to pass on her Indian heritage to her descendants in the same and equal manner to those of her male counterparts while the nature of the status of other Indians was enhanced by the amendments following Bill C-31. Under Bill C-3/McIvor, Nora Johnson is still unable to pass on her Indian heritage to her descendents in the same and equal manner of those of her male counterparts.
(Revised Statement of Particulars of the Complainants, dated June 28, 2011, at p. 9)
[51] In the Complainants’ written submissions on stage one of this matter, the complaint is described as follows:
The Complaint alleges discrimination based on the manner in which they were registered as Indians under the Indian Act and the benefits and rights associated with such registration.
[…]
The Complainants submit that their entitlement to registration as Indians is service as defined in the CHRA […]
The Complainants submit that the registration of Canadian Citizen as an Indian under the Indian Act is a service, this service includes the determination of who is or who is not entitled to be registered as an Indian.
(Complainants’ Written Submissions, dated January 14, 2013, at paras. 1, 8)
[52] During oral argument at the stage one hearing, the Complainants also stated the following with regard to the nature of their complaints:
Member Lustig: But what’s at issue here is […] the most recent letters that have gone out with respect to the applications of your children and your siblings’ children; and, in those letters they’re denied registration rights on the basis of the Act as it now stands after C-3; and, I’m trying to ask or I’m trying to find out whether you’re questioning that as discrimination in the provision of service or you’re questioning the Parliament’s establishment of a set of rules that don’t include your children as status Indians.
Jeremy Matson: I have to question Parliament, yes, cause Parliament had all the information in front of them, they had witnesses about Bill C-3. I was even going to be a witness before the Senate and I described certain discrimination that we go into this in further detail […] Parliament passed legislation with discriminatory aspects, the Senate told the House of Commons there’s discrimination in it; so, yes, Parliament itself is guilty in my mind and the Indian Act and the process of becoming an Indian and so forth.
(Audio recording of hearing held on January 30, 2013, at 51:30)
[53] Further on in their oral submissions the Complainants also stated:
Member Lustig: Again, the action in your mind, the action taken, that would be the action of the federal government in not broadening the definition after McIvor to include by legislative changes your children; or, not children, your status so that your children could have that status.
Jeremy Matson: Yes, like we had talked about, that Parliamentary committees, the Senate and other parties, the NDP, the Liberal, Bloc Québécois, all those aboriginal affairs critics and individuals involved in those amendments to Bill C-3 had provided 6(1) status to us and 6(2) status for our children.
Member Lustig: And, if that had happened?
Jeremy Matson: This complaint would have been shut down.
Member Lustig: We would have been finished?
Jeremy Matson: Yes, we would have been finished.
(Audio recording of hearing held on January 30, 2013, at 56:00)
[54] Based on all the above statements from the Complainants, I believe the present complaint can properly be characterized as a challenge to legislation, namely section 6 of the Indian Act, and nothing else. The essence of this complaint, in my opinion, is that the Complainants are of the view that section 6 of the Indian Act needs to be amended, as per the proposed amendment that was rejected by the House of Commons Committee on Northern Affairs and Aboriginal Development, described in paragraph 26 above. In fact, the Complainants have admitted as much, as referred to in the hearing excerpts at paragraphs 52 and 53 above. The criteria entitling a person to be registered, or not registered, as an Indian under section 6 of the Indian Act is not a service. It is legislation enacted by Parliament. Pursuant to Murphy, legislation is not a service.
[55] While the Commission characterizes the complaint as a challenge to the act of applying the discriminatory registration provisions of the Indian Act to members of the public; they also agree that the impugned provisions required the Respondent’s officials to reach the conclusions that they did concerning the entitlements of the Complainants. I do not accept this characterization of the complaint. The evidence and argument in this case was not directed at any wrongdoing by the Respondent, but focused on the alleged discriminatory impact of the entitlement provisions of section 6 of the Indian Act.
[56] The Respondent does not have any involvement in determining the criteria for entitlement to be registered, or not registered, as an Indian under section 6 of the Indian Act. Nor does the Respondent have any discretion in determining entitlement to be registered, or not registered, as an Indian pursuant to the criteria in section 6 of the Indian Act. Entitlement has been determined by Parliament, not the Respondent, through section 6 of the Indian Act; and, the Respondent must follow this section in processing applications for registration. Sections 2 and 5 of the Indian Act make this clear:
2. (1) In this Act, […]
“Indian” means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian; […]
“Registrar” means the officer in the Department who is in charge of the Indian Register and the Band Lists maintained in the Department;
[…]
5. (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act.
(2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985.
(3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register.
(4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom.
(5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar.
[57] As the definition of “Indian” and subsection 5(5) of the Indian Act indicate, entitlement and registration are two separate things. Entitlement is predetermined by the Indian Act, regardless of registration; whereas registration in the Indian Register is the result of an application process through the Registrar/Department.
[58] The Respondent does not offer to the public the benefit of entitlement to registration under section 6 of the Indian Act, or the corresponding tangible and intangible benefits that may go along with entitlement to registration. It is the Indian Act itself that offers the benefit of entitlement to registration and it is Parliament who has applied the entitlement provisions of the Indian Act to the public, not the Respondent. What the Respondent may offer as a benefit/service to the public is the processing of applications for registration to determine whether a person should be added to the Indian Register, in accordance with the Indian Act. This involves the Indian Registrar receiving applications for registration, reviewing the information in the application to determine whether it is complete and accurate; and, assessing the application to determine whether or not the applicant satisfies the entitlement provisions of section 6 of the Indian Act. The Complainants do not allege discrimination in the Respondent’s performance of any of these functions. As noted, the result of this process is that either the applicant is added to the Indian Register as being entitled to status as an Indian under the Indian Act or he is not. While the processing of an application by the Registrar as