Andrews et al. v. Indian and Northern Affairs Canada

Andrews et al. v. Indian and Northern Affairs Canada
Collection
Canadian Human Rights Tribunal
Date
2013-09-30
Neutral citation
2013 CHRT 21
File number(s)
T1686/4111, T1725/8011
Decision-maker(s)
Marchildon, Sophie
Decision type
Decision
Decision status
Final
Grounds
Age
Family Status
National or Ethnic Origin
Race
Decision Content
Between:
Roger William Andrews and
Roger William Andrews on behalf of Michelle Dominique Andrews
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Indian and Northern Affairs Canada
Respondent
Decision
Member: Sophie Marchildon
Date: September 30, 2013
Citation: 2013 CHRT 21
Table of Contents
I............. Introduction & Historical Context 1
II........... Complaints. 5
III......... Background. 6
IV......... Positions of the Parties. 9
A. The Complainant 9
B. The Commission. 11
C. The Respondent 12
V........... Issues. 13
VI......... Analysis. 14
A. Do the complaints involve the provision of services customarily available to the general public within the meaning of section 5 of the Act; or, are the complaints solely a challenge to legislation?. 14
B. If the complaints are solely a challenge to legislation, does the Act allow for such complaints? 24
(i) Supreme Court of Canada and other federal human rights case law regarding the primacy of human rights legislation. 25
(ii) Other human rights case law from across the country regarding the primacy of human rights legislation. 35
(iii) Current provisions of the Act 36
(iv) The former section 67 of the Act 38
VII....... Conclusion. 42
I. Introduction & Historical Context [1] Indian status is a legal construct created by the federal government. Through various provisions of the Indian Act, R.S.C., 1985, c. I-5 [the Indian Act] and its prior enactments, the federal government has defined the persons who are entitled to registration as “Indian”. The statutory concept of “Indian” from early colonialism to the present day does not reflect the traditional or current customs of First Nations peoples for defining their social organization and its membership (see McIvor v. The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827 at paras. 8-12 [McIvor]).
[2] Prior to 1985, in defining who was and who was not entitled to registration as “Indian”, previous enactments of the Indian Act also provided for situations where an “Indian” could be enfranchised from entitlement to registration, whether voluntarily or involuntarily. “Enfranchisement” was one of the key mechanisms by which the federal government sought to achieve the goal of assimilating First Nations people to the rest of Canadian society. The term refers to a number of statutory mechanisms that existed in the Indian Act, in varying forms, at all material times up to 1985. Generally speaking, enfranchisement was a process by which the federal government stripped an Indian, all of his or her minor unmarried children and future descendants of Indian status and band membership in exchange for incentives and various entitlements under the Indian act and otherwise, depending on the mechanisms in force at the time of enfranchisement. At different times, these incentives included such things as Canadian citizenship, the right to vote in Canadian elections, rights to hold life and/or fee simple estates in reserve lands, or per capita shares of funds held on behalf of the First Nation. In 1985, the provisions of the Indian Act that allowed for enfranchisement were repealed.
[3] Canada’s Indian enfranchisement policy exemplifies well the dissonance between the statutory definition of “Indian” and First Nations peoples’ perspective on defining their identity. The Supreme Court of Canada has noted the disadvantage, stereotyping, prejudice and discrimination associated with the enfranchisement provisions of the Indian Act. As L’Heureux‑Dube J. wrote in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere] at para. 88 “The enfranchisement provisions of the Indian Act were designed to encourage Aboriginal people to renounce their heritage and identity, and to force them to do so if they wished to take a full part in Canadian society”. She further noted that the application of the provisions had helped to create a population of former Indians living off reserve, who were subjected to discriminatory assumptions that they were somehow “less Aboriginal” than others who had remained on reserve: Corbiere at paras. 83-92. Writing for the majority, McLachlin J. (as she then was) also found that to assume that an Aboriginal person off-reserve is not interested in preserving their cultural identity is to engage in discriminatory stereotyping: Corbiere, supra at para. 18. In a recent decision issued in July of 2012, a unanimous Federal Court of Appeal had the following to say about the process of enfranchisement by application under the former s. 108(1) of the Indian Act:
Enfranchisement' is a euphemism for one of the most oppressive policies adopted by the Canadian government in its history of dealings with Aboriginal peoples: Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Backward, vol. 1 (Ottawa: Canada Communication Group Publishing, 1996) at page 271.
Beginning in 1857 and evolving into different forms until 1985, 'enfranchisement' was aimed at assimilating Aboriginal peoples and eradicating their culture or, in the words of the 1857 Act, encouraging 'the progress of [c]ivilization' among Aboriginal peoples...
Under one form of 'enfranchisement' - the form at issue in this case – Aboriginal peoples received Canadian citizenship and the right to hold land in fee simple. In return, they had to renounce - on behalf of themselves and all their descendants, living and future - their legal recognition as an 'Indian', their tax exemption, their membership in their Aboriginal community, their right to reside in that community, and their right to vote for their leaders in that community.
The Supreme Court has noted the disadvantage, stereotyping, prejudice and discrimination associated with 'enfranchisement': Corbiere ... With deep reluctance or at high personal cost, and sometimes under compulsion, many spent decades cut off from communities to which they had a deep cultural and spiritual bond.
Canada (Attorney General) v. Larkman, 2012 FCA 204 at paras. 10-13
The Ontario Court of Appeal previously made similar comments in a case involving an enfranchisement by application, stating that, "The purpose of enfranchisement was to facilitate the federal government's attempts to assimilate Aboriginal peoples into the mainstream population", and endorsing the same passage from the Royal Commission on Aboriginal Peoples, describing enfranchisement as being amongst the most oppressive practices in the history of the Indian Act: Etches v. Canada (Indian and Northern Affairs), 2009 ONCA 182 at para. 1.
[4] As part of these proceedings, John F. Leslie Ph.D testified and prepared an expert report entitled Indian Enfranchisement Policy in Canada: 1867 to 1951. Excerpts from this report demonstrate the government’s objective behind the previous enfranchisement provisions of the Indian Act:
• " ... the time has come for facilitating the enfranchisement of a great number of those Indians who, by their education and knowledge of business, their intelligence and their good conduct, are as well qualified as whites to enjoy civil rights, and to be released from a state of tutelage" (Canada, Annual Report of the Secretary of State for the Year ended 30 June 1868, at pp. 1-2; cited at p. 3 of Dr. Leslie's report);
• "To grant enfranchisement to the intelligent and well-behaved Indians would probably train them to still further self-reliance, and encourage their brethren who are lagging behind to make greater exertions to overtake the Anglo-Saxon in the race of progress" (Canada, Annual Report of the Department of the Interior for the Year ended 30 June 1874, at pp. 5-6; cited at pp. 4-5 of Dr. Leslie's report);
• " ... the true interests of the aborigines and of the State alike require that every effort should be made to aid the red man in lifting himself out of his condition of tutelage and dependence, and that it is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of true citizenship" (Canada, Annual Report of the Department of the Interior for the Year elided 30 June 1875, at p. xiii; cited on p. 5 of Dr. Leslie's report);
• "I want to get rid of the Indian problem. I do not think as a matter of fact, that the country ought to continuously protect a class of people who are able to stand alone...Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, and that is the whole object of this Bill" (Duncan Campbell Scott, Deputy Superintendent General of Indian Affairs, 1919, quoted in John L. Taylor, Canadian Indian Policy During the Inter-War Years, 1981-1939 at p. 147; cited on p. 17 of Dr Leslie's report);
• "In the long path that must be followed in bringing the Indian from a primitive, uncivilized state to one of self-reliance and self-support, the latter is the objective kept in view throughout.
It is inevitable that at the beginning assistance, advice and direction must be given and restraint applied. Obviously all these should disappear upon the attainment of the desired status by the protégés or wards of the government
[...]
The Indian communities, instead of progressing, stand still or even retrogress: not only that, but they have a deteriorating effect upon surrounding white communities and form an obstruction to the country's progress as a whole." (Dr. Harold McGill, Deputy Superintendent General of Indian Affairs, 1933, “Notes on the enfranchisement of Indians”; cited on p. 20 of Dr. Leslie's report).
[5] In my view, in the human rights context in particular, Justice not only seeks to rectify the violation of a person’s rights, but should also endeavour to heal any suffering a person has endured as a result of unjust treatment. A fundamental component of healing is the recognition of suffering. The recognition of the hurt an individual or group has endured may address their need for justice, speed up the healing process, enhance feelings of self-value and promote respect for human dignity. While the judicial sphere often speaks in terms of what is legal or illegal, human values of what is right or wrong frequently transcend beyond formal legalities and may not always be encompassed in the current state of the law. In my view, the enfranchisement policies and practices encompassed in the Indian Act were completely contrary to human rights principles and values.
[6] I acknowledge the suffering created by the government’s previous enfranchisement policies and practices on the First Nations people of Canada, including the Complainant, Roger William Andrews, and his family.
[7] It is within the historical context of enfranchisement that the Complainant brings the present complaints.
II. Complaints [8] The Canadian Human Rights Commission (the Commission) has requested the Canadian Human Rights Tribunal (the Tribunal) inquire into two complaints filed by the Complainant.
[9] In his first complaint, filed on or around October 20, 2008, the Complainant, on behalf of his daughter Michelle Dominique Andrews, claims Indian and Northern Affairs Canada [INAC], the Respondent, engaged in a discriminatory practice within the meaning of section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 [the Act], when it denied his daughter’s application for Indian status under the Indian Act [the first complaint].
[10] In his second complaint, filed on or around February 1, 2010, the Complainant also claims the Respondent engaged in a discriminatory practice within the meaning of section 5 of the Act when it granted his own application for Indian status under subsection 6(2) rather than subsection 6(1) of the Indian Act [the second complaint].
[11] The essence of the complaints, as described by the parties in their Agreed Statement of Facts, is that the Complainant challenges the registration provisions in section 6 of the Indian Act as discriminatory on the grounds of race, national or ethnic origin and family status.
[12] The complaints were consolidated for the purpose of a single hearing (see Roger William Andrews v. Aboriginal Affairs and Northern Development Canada, 2011 CHRT 22), which was held from October 15-19, October 22-26, and November 7-9, 2012, in Surrey, British Columbia.
III. Background [13] The Complainant’s father, Andrew Joseph, was recorded from birth as being a member of the Naotkamegwanning First Nation, also known as the Whitefish Bay Indian Band, and, therefore, was an Indian under paragraph 2(d)(i) of the Indian Act, R.S.C. 1927, c. 98.
[14] His father married Isabella McCafferty, who had no aboriginal ancestry, but who became an Indian under paragraph 2(d)(iii) of the Indian Act, R.S.C. 1927, c. 98, upon her marriage to Andrew Joseph. The two had a daughter, Jessie Joseph, on December 22, 1955. At that time, Jessie Joseph was entitled to registration as an Indian and was a member of the Naotkamegwanning Indian by virtue of her father.
[15] By written application dated January 8, 1957, Andrew Joseph applied for enfranchisement pursuant to subsection 108(1) of the Indian Act, R.S.C. 1952, c. 149. Through enfranchisement, Andrew Joseph, his wife and unmarried child, would cease being Indians pursuant to the Indian Act in exchange for various incentives.
[16] By Order in Council dated March 21, 1957, Mr. Joseph was enfranchised, along with his wife, Isabella Joseph (née McCafferty), and their daughter, Jessie Joseph. As a result, all three individuals ceased to be Indians within the meaning of the Indian Act, R.S.C. 1952, c. 149, s. 109, and as amended by R.S.C. 1956, c. 40, s. 27; and their names were removed from the Indian Register and from the membership list of the Indian Band.
[17] The Complainant was born in 1958. His mother, Marie Holden, is not and never was entitled to registration as an Indian under the Indian Act. As a result of his father’s enfranchisement in 1957, when the Complainant was born, he was not entitled to registration as an Indian under the Indian Act, R.S.C. 1952, c. 149. If the Complainant’s father had not enfranchised, the Complainant would have been entitled at birth to registration under paragraph 11(1)(c) of the Indian Act, R.S.C. 1952, c. 149, as a male person who is a direct descendant in the male line of a male band member.
[18] The Complainant married Georgina Maltzan in 1976, who is not and never was entitled to registration as an Indian under the Indian Act. They have two daughters: Cheryl Andrews, born May 9, 1983; and, Michelle Andrews, born December 4, 1986.
[19] In 1985, the provisions of the Indian Act that allowed for enfranchisement were repealed. The Indian Act was also amended to reinstate entitlements to registration for those who had previously been enfranchised. Specifically, paragraph 6(1)(d) of the Indian Act created entitlement to registration for persons who were named in an Order in Council issued pursuant to the former enfranchisement provisions. However, section 7 also provided that a person was not entitled to be registered if, generally, they (i) had no claim to Indian status by virtue of their own ancestry, (ii) previously gained status before 1985 by marrying an Indian man, and (iii) lost that status before 1985 by virtue of an application for enfranchisement.
[20] In 1985, the coming into force of Bill C-31, resulted in significant amendments to the registration provisions of the Indian Act. Since that time, it has been sections 6(1) and 6(2) of the Indian Act that describe the various persons who are entitled to be registered in the Indian Register. The amendments also introduced the current formulation of what is commonly known as the “second generation cut-off rule”. This rule operates so as to cut off eligibility for registration upon the second consecutive generation of parenting with a person who is not an Indian. The second generation cut-off rule functions as follows:
• 6(1) has child with 6(1) = 6(1) child
• 6(1) has child with 6(2) = 6(1) child
• 6(2) has child with 6(2) = 6(1) child
• 6(1) has child with non-Indian = 6(2) child
• 6(2) has child with non-Indian = non-Indian child
[21] Prior to the 1985 amendments to the Indian Act, Indian status was based almost entirely upon having a patrilineal connection to an Indian man. For example, the children of Indian men who married non-Indian women received Indian status; however, the children of Indian women who had married non-Indian men were denied status. The second generation cut-off rule was introduced in an attempt to establish equality of women and men using and to create a gender-neutral standard for Indian status entitlement. As outlined above, the status of children is now assessed based on an examination of both parents, not just the father.
[22] As a result of the 1985 amendments, the Complainant’s father, Andrew Joseph, and half-sister, Jessie Joseph, became eligible for registration under paragraph 6(1)(d) of the Indian Act. Isabella Joseph (née McCafferty), whose former status flowed solely from her marriage to Andrew Joseph, did not regain status given the application of section 7 of the Indian Act. The Complainant became eligible for registration under subsection 6(2), as he was the child of one person eligible under subsection 6(1) (Andrew Joseph) and one non-Indian (Marie Holden). The Complainant was not himself eligible for registration under paragraph 6(1)(d) as his name did not appear in the enfranchisement order as he was born after his father’s enfranchisement.
[23] On July 29, 2004, the Complainant applied for registration as an Indian under the Indian Act. His application was supported by various documents outlining the Complainant’s background and family history. On August 21, 2006, the Office of the Indian Registrar notified the Complainant that he was registered as an Indian under subsection 6(2) of the Indian Act and as a member of the Naotkamegwanning Band in accordance with paragraph 11(2)(b).
[24] On October 19, 2006, the Complainant submitted an application for registration as an Indian under the Indian Act on behalf of his daughter, Michelle Andrews. This application provided information about Michelle Andrews’ father (the Complainant), but no information about the identity of Michelle Andrews’ mother (Georgina Maltzan). On March 20, 2007, the Office of the Indian Registrar notified Michelle Andrews that, since one of her parents (her father Roger Andrews) was entitled to be registered under section 6(2) and since no information had been provided about her mother, there was no provision in the Indian Act which would permit entry of her name in the Indian Register.
[25] On March 30, 2009, the Complainant submitted a protest to the Office of the Indian Registrar, pursuant to section 14.2 of the Indian Act, in which he voiced his wish to appeal, among other things, the decision to register him under subsection 6(2) of the Indian Act, rather than under some provision of subsection 6(1); and, the decision that Michelle Andrews was not eligible for registration.
[26] On June 4, 2010, the Office of the Indian Registrar wrote a letter to Mr. Andrews explaining the legislative provisions and explaining how they operated so as to enable him to be eligible for registration under subsection 6(2) of the Indian Act, but not under any provision of subsection 6(1). The letter also explained that since the Complainant had not provided any new information and since he had not provided any new arguments as to how the information already supplied should be analysed, his letter could not be accepted as a valid protest.
[27] As for his daughter, Michelle Andrews, the June 4, 2010 letter explained that, since she was an adult, she needed to provide her own letter of protest. At the time of this complaint, Michelle Andrews had not submitted a protest in respect of the decision made by the Office of the Indian Registrar regarding her application for registration.
IV. Positions of the Parties A. The Complainant [28] According to the Complainant, given his status under subsection 6(2) and his daughter’s denial of status, the present day version of the Indian Act continues the discriminatory effects of the previous enfranchisement provisions of the Indian Act. He submits that, while the 1985 amendments to the Indian Act partly reversed the effects of enfranchisement, people like himself and his daughter still endure the discriminatory effects of the enfranchisement of their relatives.
[29] Had his father not enfranchised, the Complainant submits he would have been entitled to registration pursuant to any of the versions of the Indian Act pre-1985; and, to subsection 6(1) status under the current version of the Indian Act. With subsection 6(1) status, the Complainant would then be able to pass 6(2) status along to his daughter, Michelle Andrews.
[30] The Complainant notes that while the 1985 amendments to the Indian Act were done in an attempt to alleviate gender discrimination and the discrimination of enfranchisement, the government was not successful in removing these forms of discrimination. According to the Complainant, this is evident by examining his and his daughter’s current circumstances with regard to Indian status, and the finding of the British Columbia Court of Appeal in
McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 [McIvor]. In McIvor, the Court found that paragraphs 6(1)(a) and 6(1)(c) of the Indian Act violated the right to equality under section 15 of the Canadian Charter of Rights and Freedoms and were not justified under section 1 of that same legislation. In sum, the Court found that certain aspects of the Indian Act’s registration scheme continued to discriminate between the descendants of Indian men and women, despite the 1985 amendments to correct such inequality.
[31] The Complainant also notes that, when considering the amendments to the Indian Act prior to those that occurred in 1985, the government had first thought of extending status to those persons with a ¼ Indian heritage. In the Complainant’s view, if that standard had been adopted instead of the current regime, it would have allowed for one more generation of status Indians, which would have included himself and his daughter. Pursuant to the Supreme Court of Canada’s decision in Moore v. British Columbia (Education), 2012 SCC 61 [Moore], the Complainant claims the Respondent failed to appropriately consider this alternative to the current registration provisions of the Indian Act; or, how the current provisions differentiate between siblings of the same family affected by enfranchisement. Therefore, as the registration provisions of the Indian Act currently stand, the Complainant submits that the regime is still discriminatory.
B. The Commission [32] According to the Commission, the previous enfranchisement provisions of the Indian Act were based on colonial assumptions that Aboriginal peoples would, over time, abandon their traditional cultures and ways of life, and be absorbed into “civilized” Euro-Canadian society. These assumptions, and the government’s policy of encouraging enfranchisement, were oppressive, assimilationist, and racially discriminatory. The Commission argues that the registration provisions of the Indian Act are inconsistent with the requirements of the Act, insofar as they continue to allow the current entitlements of Roger and Michelle Andrews to be negatively affected by the past enfranchisement of Andrew Joseph.
[33] The basis for the Commission’s argument is that the Act allows for complaints challenging the discriminatory impact of other federal laws. According to the Commission, Supreme Court of Canada case law states that, barring express statutory language to the contrary, human rights legislation has primacy over other legislation and renders inconsistent laws inoperable.
[34] In this regard, the Commission claims the record of these proceedings establishes a prima facie case of discrimination: registration as an Indian is a “service” within the meaning of section 5 of the Act; the Complainant and his daughter have either been (i) denied this service or (ii) been subjected to adverse differentiation with respect to this service; and, the denial or adverse differentiation is linked to the prohibited grounds of race and/or family status.
[35] The Commission submits that the Respondent, in responding to this prima facie case of discrimination, has failed to satisfy it onus of proving a bona fide justification for the discrimination. According to the Commission, the Respondent has not proven that
(i) due consideration has been given to the circumstances of persons in the situations of the Complainant and his daughter; or, (ii) that it would cause undue hardship to eradicate the impugned denial or adverse differentiation by extending subsection 6(1) status to Mr. Andrews and subsection 6(2) status to his daughter. In this regard, the Commission submits the Supreme Court of Canada’s decision in Moore confirms that, without proof of giving serious consideration to accommodating the circumstances of persons in the situation of the Complainant and his daughter, any claim to justify the registration provisions of the Indian Act cannot succeed.
C. The Respondent [36] According to the Respondent, these complaints are directed solely at an Act of Parliament and nothing else. As a result, the Federal Court of Appeal’s reasoning in Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 [Murphy], which found that a complaint directed against an act of Parliament fell outside the jurisdiction of the Act, would dictate that the complaint should be dismissed. The Respondent argues the Murphy decision is directly on point and binding on the Tribunal, and it is not open to the Tribunal to overturn a decision of the Federal Court of Appeal. In the Respondent’s view, as the Complainant seeks to challenge section 6 of the Indian Act, he should be filing a Canadian Charter of Rights and Freedoms challenge in a court of law.
[37] In the alternative, the Respondent raises many other arguments as to why these complaints cannot form the basis of a prima facie case of discrimination, including: (1) the Complainant is trying to re-invigorate the male bias that existed in the Indian Act prior to 1985; (2) the complaint is based on an impermissible retrospective application of the Act to an event, the enfranchisement of Andrew Joseph, that occurred 20 years prior to the coming into force of the Act; (3) the grounds of family status, race or ethnic origin are not implicated by these complaints; (4) the Complainant cannot rely on the alleged discriminatory treatment of someone else (their grandparent) to substantiate his own claim of discrimination; and, (5) the complaints require an element of “arbitrariness” or “stereotyping” and not simply a distinction based on a prohibited ground of discrimination.
[38] In the further alternative, if a prima facie case of discrimination is established, the Respondent submits it is justified pursuant to paragraph 15(1)(g) and subsection 15(2) of the Act. According to the Respondent, the 1985 amendments to the Indian Act were the product of over fifteen years of consultation with aboriginal peoples, study by Parliamentary Committees and development by government. Parliament amended the former gender-biased legislation and balanced the interests of all those affected by the legislation, thereby achieving the current gender-neutral registration provisions. Deviating from the gender neutral provisions by adopting and reinvigorating the male bias of the former Indian Act would constitute undue hardship. Likewise, the Respondent submits that deviating from the genealogical standard employed by section 6 of the Indian Act, to encompass a third or fourth generation of persons with mixed parentage as suggested by the Complainant, would also constitute undue hardship.
[39] That said, as subsection 15(2) of the Act only allows undue hardship to be established on the basis of health, safety and/or cost, the Respondent argues that to justify a prima facie case of discrimination in this matter the term “cost” should include “social” cost, and not simply financial cost. Otherwise, the Respondent claims it would be put in the position of having to advance a justification based solely on financial undue hardship. According to the Respondent, it is loathe to pursue a solely financial justification for the registration provisions of the Indian Act given its reductive, dehumanizing nature, and the fact that non-monetary factors were important and powerful considerations in crafting those provisions. In this regard, the Respondent notes that an analysis under the Canadian Charter of Rights and Freedoms, instead of under the Act, would be a more conducive analysis for taking into account the social considerations that went into the registration provisions of the Indian Act.
V. Issues [40] The present complaints are brought pursuant to section 5 of the Act, which 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.
[41] Given section 5 and the positions of the parties outlined above, the issues in this case can be framed as follows:
A. Do the complaints involve the provision of services customarily available to the general public within the meaning of section 5 of the Act; or, are the complaints solely a challenge to legislation?
B. If the complaints are solely a challenge to legislation, does the Act allow for such complaints?
[42] If the complaints involve the provision of services, or if the Act allows for complaints that challenge legislation, then the remaining issues to address would be:
A. Has the Complainant established a prima facie case of discrimination?
B. If so, has the Respondent demonstrated that the prima facie discrimination did not occur as alleged or that the practice is justifiable under the Act?
VI. Analysis A. Do the complaints involve the provision of services customarily available to the general public within the meaning of section 5 of the Act; or, are the complaints solely a challenge to legislation? Parties’ positions
[43] The Complainant views Indian registration as a “service”. According to the Complainant, Service Canada lists Indian Registration and Band Lists as services on its website. Therefore, in the Complainant’s view, Indian registration can be seen to provide a benefit or assistance to first nations. The Complainant adds, the benefits that Indian registration provides are inextricably linked to that registration and are services themselves (for example, health care, right to access land and hunting and fishing rights).
[44] The Commission also views Indian registration as a “service” for the purposes of section 5 of the Act. First, it claims the wording and legislative history of the former section 67 of the Act shows Parliament’s intent and understanding that, in the absence of a specific legislative statement to the contrary, the Act will apply to the registration provisions of the
Indian Act. According to the Commission, the only way to give effect to Parliament’s intent in this regard is to 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. In the Commission’s view, there is no other section in the Act that could reasonably be interpreted to support the kinds of complaints that Parliament clearly envisioned when enacting the former section 67 in 1977.
[45] The Commission also submits that Indian registration meets all the general criteria that are currently used to determine whether government conduct qualifies as a “service”: (i) registration as an Indian under the Indian Act confers tangible and intangible benefits (including the ability to pass a status entitlement to one’s child or grandchild); (ii) those benefits are “held out” and “offered” to the eligible public in the terms of the Indian Act itself, and in publicly-available government publications; (iii) persons seeking to be registered under the Indian Act are required to submit applications to the Office of the Indian Registrar; (iv) past case law has recognized that the terms of federal benefits legislation, and the actions of government departments in administering that legislation, are subject to review as “services” under section 5 of the Act; and, (v) treating the registration scheme under the Indian Act as a “service” would also be consistent with decisions from other jurisdictions that have found government benefit schemes to be “services” within the meaning of the applicable human rights statutes.
[46] The Respondent, on the other hand, does not view entitlement to registration under the Indian Act as a “service” under section 5 of the Act. According to the Respondent, while the processing of applications for registration may constitute a “service” under section 5 of the Act, Parliament’s criteria for identifying who is eligible for registration in section 6 of the Indian Act is not a service. The Complainant is not saying that his application was processed any differently from other applications resulting in discrimination; rather, these complaints are about the parameters within which Parliament has delineated the Indian status population. In this regard, Parliamentary law making is not a service.
Analysis
[47] In determining whether or not Indian registration, as alleged by the Complainants and the Commission in this case, is a service under the Act, it is useful here to provide greater clarity on what is meant in s. 5 by the words “a service customarily available to the general public”. In Gould v. Yukon Order of Pioneers, [1996] 1 S.C.J. No. 29 [Gould], the Supreme Court of Canada interpreted s. 8(a) of the Yukon Human Rights Act, which prohibits any person from discriminating “when offering or providing services, goods, or facilities to the public”, in light of other analogous provisions of the various Canadian human rights statutes, including s. 5 of the Act. The Court comes to establish a two-part analysis to interpret this section at paragraph 68:
The first step in the analysis involves a determination of what constitutes the "service", based on the facts before the court. Having determined what the "service" is, the next step requires a determination of whether the service creates a public relationship between the service provider and the service user. Inherent in this determination is a decision as to what constitutes "the public" to which the service is being offered, recalling that public is to be defined in relational as opposed to quantitative terms. In ascertaining a "public relationship" arising from a service, criteria including, but not limited to, selectivity in the provision of the service, diversity in the public to whom the service is offered, involvement of non-members in the service, whether the service is of a commercial nature, the intimate nature of the service and the purpose of offering the service will all be relevant. I would emphasize that none of these criteria operate determinatively; for example, the mere fact that an organization is exclusive with respect to the offering or providing of its service does not necessarily immunize that service from the reach of anti-discrimination legislation. A public relationship is to be determined by examining the relevant factors in a contextual manner.
[48] The scope of section 5 has been further defined in recent years with cases like Canada (Attorney General) v. Watkin, 2008 FCA 170, 378 N.R. 268 [Watkin], Forward v. Canada (Citizenship and Immigration), 2008 CHRT 5 [Forward] and Dreaver v. Pankiw, 2009 CHRT 8 [Pankiw] upheld by the Federal Court in Canada (Canadian Human Rights Commission) v. Pankiw, 2010 FC 555 [Pankiw FC]. In Watkin, the Federal Court of Appeal expressly rejects the idea that all government actions come within the ambit of section 5 of the Act. The Court disavows the finding in Bailey v. Canada (Minister of National Revenue), (1980) 1 C.H.R.D./193 that “all government actions in the performance of a statutory function constitute “services” within the meaning of section 5 because they are undertaken by the “public service” for the public good”. (See also Menghani v. Canada (Employment and Immigration Commission) (1992), 17 C.H.R.R. D/236 at D/244—D/246 and Re Singh, [1989] 1 F.C. 430 (F.C.A.)). Rather, the Court defines section 5 as contemplating “something of benefit being “held out” as services and “offered” to the public” and which are the result of a process taking place “in the context of a public relationship”. The Court offers some examples of government actions that would constitute a service at para. 28:
Public authorities can and do engage in the provision of services in fulfilling their statutory functions. For example, the Canada Revenue Agency provides a service when it issues advance income tax rulings; Environment Canada provides a service when it publicizes weather and road conditions; Health Canada provides a service when it encourages Canadians to take an active role in their health by increasing their level of physical activity and eating well; Immigration Canada provides a service when it advises immigrants about how to become a Canadian resident. That said, not all government actions are services.
[49] In Pankiw, the Tribunal determined that Householders (printed brochures sent to households within a constituency) sent by Dr. Jim Pankiw, Member of Parliament for the Federal riding Saskatoon Humbolt in 2002-2003 to his constituents and alleged to contain discriminatory content, were not a service and were therefore not subject to the provisions of the Act. The Tribunal relied on the interpretation of section 5 made in Watkin but went further, accounting for cases like Canada (A.G.) v. McKenna, [1999] 1 F.C. 401 (CA) [McKenna (F.C.)] and Forward, and determined that a service must require something of benefit or assistance being held out, but that one may also inquire “whether that benefit or assistance was the essential nature of the activity”: Pankiw FC at para. 42.
[50] Applied to the facts in Pankiw, the Tribunal found that the fundamental purpose and character of the Householders, which were funded by the House of Commons, was to enable Members of Parliament to further their political communications needs. It was the Members of Parliament, and not the constituents, who were the true prime beneficiaries of the Householders and as a result, their content did not constitute a “service” within the meaning of s. 5 of the Act. Moving on to the second part of the analysis set out in Gould, the Tribunal found that, moreover, even if the content of the Householders did constitute a service, it did not occur in the context of a public relationship as the public had not been invited to participate in the creation of the Householders. The Tribunal concluded that while the distribution of the Householders to the constituents did give rise to a public relationship and could have constituted a “service” under the Act, this activity was not alleged to have occurred in any discriminatory way. It therefore concluded