Beattie v. Aboriginal Affairs and Northern Development Canada

Beattie v. Aboriginal Affairs and Northern Development Canada
Collection
Canadian Human Rights Tribunal
Date
2014-01-10
Neutral citation
2014 CHRT 1
File number(s)
T1441/6709
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Decision status
Final
Grounds
Family Status
Sex
Decision Content
Between:
Joyce Beattie
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Aboriginal Affairs and Northern Development Canada
Respondent
T’Seluq Beattie
- and -
Nikota Beattie
Interested parties
Decision
Member: Edward P. Lustig
Date: January 10, 2014
Citation: 2014 CHRT 1
Table of Contents
Page
I............. The Complaint 1
II........... Facts. 2
III......... Issues. 13
IV......... Summary of the Commission’s Submissions. 13
V........... Summary of the Complainant’s Submissions. 16
VI......... Summary of the Respondent’s Submissions. 19
VII....... Analysis. 22
A. Has the matter been rendered moot?. 22
B. Has discrimination been established?. 23
C. Does the defence of bona fide justification apply in this case?. 29
VIII..... Decision. 30
IX......... Remedies. 30
X........... Order 32
I. The Complaint [1] This is a decision respecting a Complaint signed by Joyce Beattie (hereinafter referred to as the “Complainant”) on January 18, 2011 and received by the Canadian Human Rights Commission (hereinafter referred to as the “Commission”) on January 19, 2011. The Complaint was amended on December 8, 2011.
[2] The Complainant alleges in her Complaint that Indian and Northern Affairs Canada (now known as Aboriginal Affairs and Northern Development Canada and hereinafter referred to as the “Respondent”) discriminated against her “…in the provision of a service customarily available to the general public and which s. 5(3) and s. 9(3) of the Indian Act require the Respondent to provide to “any person”. In particular, the Respondent summarily refused, based entirely on the prohibited ground of family status discrimination, to give proper and adequate consideration to the facts and law presented to him to establish the Complainant’s entitlement to Indian registration and band membership pursuant to ss. 6(1)(c) and 11(1)(c) of the Indian Act. The purpose of the complaint is to prevent a continuing contravention of the Canadian Human Rights Act by the Respondent in the conduct of his statutory duties pertaining to the Complainant’s request of June 2, 2010 for corrective amendment to her Indian registration and band membership.” The Complainant further alleges in the Complaint that “…documents and a request for amendment to her registration category to 6(1)(c), which would entitle her to reinstatement in her former and proper Gwichya Gwich’in Band, were delivered to the Indian Registrar on June 7, 2010. By letter dated December 7, 2010, the Indian Registrar summarily rejected the Complainant’s request...”
[3] The Complaint cites section 5 of the Canadian Human Rights Act (hereinafter referred to as the “CHRA”) as the discriminatory practice(s) alleged to have occurred on the prohibited grounds of marital status and family status under section 3 of the CHRA. The two above mentioned sections of the CHRA read as follows;
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed on the ground of sex.
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.
[4] The Canadian Human Rights Tribunal (hereinafter referred to as the “Tribunal”) was requested by the Commission pursuant to section 49 of the CHRA to institute an inquiry into the Complaint by letter dated January 9, 2012.
[5] A hearing into the Complaint was held by me in this matter during the week of September 30, 2013.
II. Facts [6] In December of 1949, the Indian Act, R.S.C. 1927, c. 98, included the following provisions:
2. In this Act, unless the context otherwise requires...
(b) “band” means any tribe, band or body of Indians who own or are interested in a reserve or in Indian lands in common, of which the legal status is vested in the Crown, or who share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible; and, when action is being take by the band as such, means the band in council; ...
(d) “Indian” means
(i) any male person of Indian blood reputed to belong to a particular band;
(ii) any child of such person; or
(iii) any woman who is or was lawfully married to such person;...
(g) irregular band means any tribe, band or body of persons of Indian blood who own no interest in any reserve or lands of which the legal title is vested in the Crown, who possess no common fund managed by the Government of Canada, and who have not had any treaty relations with the Crown, ...
(h) “non-treaty Indian” mans any person of Indian blood who is reputed to belong to an irregular band or who follows the Indian mode of life, each of such person is only a temporary resident in Canada;...
[7] The Complainant was born on December 4, 1949, in the community known as Tsiigehtchic, Northwest Territories (formerly known as Arctic Red River). Her biological parents were James Delap Harris and Roselia (or Roaslie) Harris (nee Arruka or Aruke).
[8] James Delap Harris and Roselia (or Rosalie) Harris (nee Arruka or Aruke) married in or around 1938.
[9] On or about December 8, 1949, Norbert Otto Natsie and Bernadette Natsie (nee Coyen) adopted Joyce Beattie at the age of four days old in accordance with Aboriginal custom, as her natural mother could not care for her on account of illness.
[10] At the time they custom adopted the Complainant, Norbert Otto Natsie and Bernadette Natsie (nee Coyen) were Indians pursuant to the provisions of the Indian Act then in force and their names appeared on the Treaty 11 annuity pay list for what was then known as the Loucheaux No. 6 Band. The Respondent now recognizes the Gwichya Gwich’in band as the contemporary name of the Loucheaux No. 6 Band.
[11] The Complainant’s name was not added to the Treaty 11 annuity pay list for what was then known as the Loucheaux No. 6 Band at the time of the custom adoption.
[12] The Indian Act was substantially amended effective September 4, 1951. The Indian Act, S.C. 1951, c. 29, included the following provisions:
2. (1) In this Act, ...
(b) “child” includes a legally adopted Indian child;...
(g) “Indian” means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian;...
(j) “member of a band” means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List;...
11. Subject to section twelve, a person is entitled to be registered if that person...
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the twenty-sixth day of May, eighteen hundred and seventy four have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act,
...
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b).
...
14. A woman who is a member of a band ceases to be a member of that band if she marries a person who is not a member of that ban, but if she marries a member of another band, she thereupon becomes a member of the band of which her husband is a member.
[13] Section 5 of the 1951 Indian Act created an Indian Register “...in which shall be recorded the name of every person who is entitled to be registered as an Indian.” Before this time, there was no central Indian Register, and the Respondent instead maintained a separate treaty annuity pay list or band list for each band. As of the coming into force of the 1951 amendments, the band lists then in existence were to constitute the Indian Register, and a General List was created for persons who were entitled to registration but had no band membership.
[14] On April 6, 1974, the Complainant married Bruce Beattie, who was not registered or eligible for registration under the Indian Act. As a result of this marriage, Ms. Beattie lost any entitlements she may have had to registration and band membership, under the “marrying out” provisions of the Indian Act in force at the time. Those provisions applied only to Indian women, and not to Indian men.
[15] On March 17, 1975, the Complainant and Bruce Beattie had a son, T’Seluq Beattie.
[16] On June 1, 1976, the Complainant and Bruce Beattie had a daughter, Nikota Bangloy (nee Beattie).
[17] Effective April 17, 1985, the Indian Act was substantially amended by Bill C-31: An Act to Amend the Indian Act. As amended, the Indian Act included the following provisions:
2. (1) In this Act,...
“child” includes a legally adopted child and a child adopted in accordance with Indian custom;...
“Indian” means a person who pursuant to this Act is registered or is entitled to be registered as an India;...
“member of a band” means a person whose name appears on a Band List or who is entitled to have his name appear on a Band List; ...
5. (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.
11. (1) Commencing on April 17, 1985, a person is entitled to have his name entered in a Band List maintained in the Department for a band if...
(c) that person is entitled to be registered under paragraph 6(1)(c) and ceased to be a member of that band by reason of the circumstances set out in that paragraph;...
[18] Since the Bill C-31 amendments, it has been ss. 6(1) and 6(2) of the Indian Act that describe the various persons who are entitled to be registered in the Indian Register. As they stood immediately after the Bill C-31 amendments:
1. s. 6(1) set out categories of eligible persons that include the following:
all persons who were registered or entitled immediately prior to the effective date of the 1985 amendments (s. 6(1)(c)); and
women whose names were deleted or omitted from band lists (before September 4, 1951), or from the Indian Register (September 4, 1951 and after) because they married non-Indian men (s. 6(1)(c)); and
persons who have two Indian parents (s. 6(1)(f); and
2. s. 6(2) created eligibility for persons who have one Indian parent.
[19] Persons who are registered or eligible for registration under s. 6(1) of the Indian Act are able to pass entitlement to registration to the children they have with persons who are not registered or eligible for registration under the Indian Act. Persons who are registered or eligible for registration under s. 6(2) of the Indian Act are not able to pass entitlement to registration to the children they have with persons who are not registered or eligible for registration under the Indian Act.
[20] The Bill C-31 amendments allowed a band to assume control of its own membership, and maintain its own Band List, subject to certain requirements (Indian Act, s. 10). Until such time as a band assumes control of its Band List, the Band List continues to be maintained in the Department by the Indian Registrar, who can add or delete the names of persons who are entitled or not entitled, in accordance with the Act (Indian Act, s. 9). The Indian Registrar is not required to add a name to a band list unless an application for entry therein is made to the Indian Registrar (Indian Act, s 9(5)).
[21] The Bill C-31 amendments to the Indian Act changed the registration entitlements of the Complainant’s biological parents. As a result of the amendments, (i) James Delap Harris became eligible for registration under s. 6(2) and (ii) Roselia (or Rosalie) Harris (nee Arruka or Aruke) became eligible for registration under s. 6(1)(c).
[22] On or around September 1, 1985, the Complainant sent an application to the Office of the Indian Registrar, asking that she and her children be registered under the Indian Act.
[23] In 1986, the Respondent registered the Complainant under s. 6(1)(f), based on her descent from her biological parents. It also registered her children under s. 6(2), based on the fact they had one registered parent (the Complainant) and one parent who was not registered or entitled (Mr. Beattie). The Respondent later added the names of the Complainant and her children to the Band List for the Fort Good Hope band (i.e., the band of the Complainant’s biological mother), after the Fort Good Hope band decided not to enact its own membership rules.
[24] By letter dated March 10, 1986, the Indian Registrar wrote to the Complainant to advise that she and her children were registered under the Indian Act. The letter also explained that (i) if the Fort Good Hope Band decided before June 28, 1987, to assume control of its own Band List, she would have to apply to the Fort Good Hope Band for membership and her children’s membership, and (ii) if the Fort Good Hope Band did not assume control of its Band List by June 28, 1987, the Complainant and her children would be eligible for membership in the Fort Good Hope Band, pursuant to s. 11(2)(b) of the Indian Act.
[25] The Fort Good Hope Band did not assume control of its own Band List by June 28, 1987. As a result, the Indian Registrar added the Complainant, T’Seluq Beattie and Nikota Bangloy (nee Beattie) to the Band List for the Fort Good Hope Band effective June 28, 1987.
[26] On March 3, 2010, the Gender Equity in Indian Registration Act (“GEIRA”) was introduced to Parliament and given first reading. Among other things, GEIRA added a new s. 6(1)(c.1) to the Indian Act, which grants registration entitlement to the child of a marriage between a man who is not registered or eligible for registration, and a woman described in s. 6(1)(c) whose name was, because of the marriage, removed from a band list (before September 4, 1951) or the Indian Register (September 4, 1951, and after), where (i) the child was born after the date of the marriage, and (ii) the child has himself or herself had or adopted a child with a person who is not registered or eligible for registration on or after September 4, 1951. GEIRA passed third reading in the House of Commons on November 22, 2010, and third reading in the Senate on December 9, 2010. Royal assent was given December 15, 2010, and GEIRA came into force on January 31, 2011.
[27] By letter dated April 22, 1993, the Respondent’s then Deputy Minister formally acknowledged the following, in accordance with a settlement reached with the Crown concerning treaty annuities:
“Joyce Wilma Beattie, Nikota Beattie and T’Seluq Beattie’s Treaty 11 entitlements are not linked to status but may be linked to other factors, one of which is ancestry. In the case of Joyce Wilma Beattie, Nikota Beattie and T’Seluq Beattie, the annuity entitlements pursuant to Treaty Eleven accrued at birth and thereafter have continued to exist, and are treaty entitlements that have been recognized and affirmed by s. 35(1) of the Constitution Act, 1982.”
[28] In a letter to the Office of the Indian Registrar dated June 2, 2010, the Complainant for the first time advised the Respondent of her custom adoption for which she had obtained a certificate of custom adoption from the Northwest Territories Supreme Court recognizing that she was custom adopted legally effective on December 8, 1949. She asked that (i) her category of registration be amended from s. 6(1)(f) to s. 6(1)(c) of the Indian Act, based on her custom adoption, and (ii) her band membership to be changed from the band with which her biological mother was affiliated (752 Good Hope), to that with which her adoptive parents were affiliated (753 Gwichya Gwich’in).
[29] In a letter to the complainant dated December 7, 2010, the Indian Registrar stated that, among other things, (i) the Complainant’s custom adoption would not entitle her to be registered under s. 6(1)(c) of the Indian Act, (ii)”...for your information, the registration categories of an adoptee, adopted by two Indian parents is under the provisions of subsection 6(1)(f) of the Indian Act and the registration category a adoptee (sic) adopted by one Indian parent is under the provisions of subsection 6(2) of the Indian Act”, and (iii) if the Complainant wished to transfer to the band of her custom adoptive parents, she would have to contact INAC’s regional office in the Northwest Territories to request an official band transfer.
[30] By letter to the Complainant dated December 16, 2010, the Indian Registrar advised that (i) he was satisfied the Complainant was Northwest Territories custom adopted, (ii) the names of her custom adoptive parents had been noted in the Indian Register, (iii) her current registration category remained s. 6(1)(f) of the Indian Act, and (iv) she retained her band membership in the Fort Good Hope Band under s. 11(2)(b) of the Indian Act.
[31] T’Seluq Beattie had had one child with Stephanie Beattie (who is not registered or eligible for registration under the Indian Act): Theron Beattie, born October 16, 2003.
[32] T’Seluq Beattie submitted an application for registration dated February 7, 2011, on behalf of his child, Theron Beattie. By letter dated February 7, 2012, the Indian Registrar advised that because T’Seluq Beattie was registered under s. 6(2) of the Indian Act, and Stephanie Beattie could not be identified as someone registered or eligible to be registered, he could not determine that Theron Beattie was entitled to be registered.
[33] Nikota Bangloy (nee Beattie) has had two children with Reynold Bangloy (who is not registered or eligible for registration under the Indian Act): Jreyden Bangloy, born December 18, 2003; and Brodin Bangloy, born March 26, 2005.
[34] Nikota Bangloy submitted applications for registration dated March 11, 2011, on behalf of her children, Jreyden and Brodin Bangloy. By letter dated February 7, 2012, the Indian Registrar advised that because Nikota Bangloy was registered under s. 6(2) of the Indian Act, and Reynold Bangloy could not be identified as someone registered or eligible to be registered, he could not determine that Brodin Bangloy was entitled to registration. On February 23, 2012, the Indian Registrar sent a letter to the same effect concerning Jreyden Bangloy.
[35] By letter dated December 9, 2012 counsel for the Respondent wrote to advise that the Respondent had changed its approach and was now prepared to recognize that the Complainant had an entitlement to register under s. 6(1)(c). This reversal was made possible because the Respondent had changed its interpretation of the term “child” as used in the 1927 Indian Act. Up to this point, the Respondent had interpreted that term as including only biological children of a male Indian. As Ms. McLenachan the witness for the Respondent testified, the Respondent now decided to look at the term “with a different lens”, expanding its definition of the term to include custom adopted children. The consequences were as follows:
• The Complainant became an “Indian” on December 8, 1949, as the child of a male Indian (her custom adoptive father);
• The Complainant was entitled to register as an Indian under the 1951 Indian Act;
• The Complainant lost her entitlement to register when she married Bruce Beattie in 1974;
• The Complainant was thus a woman who had lost an entitlement before April 17, 1985, due to marrying-out, and therefore met the requirements of s. 6(1)(c) as of that date;
• her children, T’Seluq Beattie and Nikota Bangloy (nee Beattie), were entitled to registration under s. 6(1)(c.1) rather than s. 6(2).
• her grandchildren, Jreyden and Brodin Bangloy, and Theron Beattie, were entitled to registration for the first time under s. 6(2) because their parents became entitled to registration under s. 6(1) (c.1);
• The Complainant and her children retained their existing memberships in the Fort Good Hope Band; and
• The Complainant and her children could apply to transfer their memberships to another band of their choosing, pursuant to s. 12 of the Indian Act.
[36] On January 3, 2013, the Complainant received a letter from the Indian Registrar advising that, among other things, (i) upon further review her entitlement to registration has been amended from s. 6(1)(f) to s. 6(1)(c) of the Indian Act, and (ii) she retained her membership in the Fort Good Hope Band, now under s. 11(1)(c) of the Indian Act.
[37] On or around January 3 or 4, 2013, the Indian Registrar amended the registration categories of T’Seluq Beattie and Nikota Bangloy (nee Beattie) so that they are now registered under s. 6(1)(c.1) of the Indian Act, rather than s. 6(2).
[38] On January 4, 2013, the Indian Registrar (i) registered Theron Beattie, and Brodin and Jreyden Bangloy, under s. 6(2) of the Indian Act, and (ii) and added the names of Theron Beattie, and Brodin and Jreyden Bangloy, to the Band List of the Fort Good Hope Band under s. 11(2)(b) of the Indian Act.
[39] In a letter to the Indian Registration Administrator of the Fort Good Hope Band dated January 4, 2013, the Indian Registrar provided the following rationale for registering Theron Beattie under s. 6(2) of the Indian Act:
Rationale:
Parent category (T’Seluq Beattie) amended from 6(2) to 6(1)(c.1) pursuant to the 2011 amendments to the Indian Act - Gender Equity in Indian Registration Act. His mother, JOYCE WILMA BEATTIE nee HARRIS, born on 1949/12/04, registered under section 6(1)(c) of the Indian Act under Register No.7520073601. Amended from 6(1)(f) to paragraph 6(1)(c) of the Indian Act on 2013/01/03. Original entitlement based on paragraph 2(d)(ii) of the Indian Act , R.S.C. 1927, c. 98 which reads that “any child” of a male person is entitled to registration. Therefore, as a child who was custom adopted on 1949/12/08, by a registered Indian she would have been entitled to registration at the time of the adoption. She married BRUCE ALLAN BEATTIE, a non-Indian, on 1974/04/06.
[40] Although the Complainant’s registration request had now been addressed, the Respondent continued to refuse to change her statutory band membership. The parties exchanged further particulars dealing with that issue. In its Amended Statement of Particulars the Respondent acknowledged that the Complainant was entitled to have her name added to the Gwichya Gwich’in Band List, but said it could not implement that change because her name was already on the Band List for the Fort Good Hope band, and the only way she could move her name to Gwichya Gwich’in would be “...by transferring her membership pursuant to paragraph 12(b) of the Indian Act”.
[41] In letters to the Respondent’s counsel dated March 27 and April 18, 2013, the Complainant’s representative requested that the Respondent delete the names of the Complainant, Nikota Bangloy (nee Beattie), T’Seluq Beattie, Jreyden Bangloy, Brodin Bangloy and Theron Beattie from the Fort Good Hope Band List.
[42] By letter to the Complainant’s representative dated April 29, 2013, the Acting Indian Registrar advised that, among other things, (i) the names of the Complainant, Nikota Bangloy (nee Beattie), T’Seluq Beattie, Jreyden Bangloy and Brodin Bangloy had been removed from the Fort Good Hope Band list on April 29, 2013, and (ii) the name of Theron Beattie would be removed from the Fort Good Hope Band List on April 30, 2013. In doing so the Respondent changed its previous position about not deleting the Complainant and her descendants from the Band List for Fort Good Hope without a “transfer” under s. 12(d) of the Indian Act.
[43] It is open to the Complainant and her descendants to apply to have their names added to the Gwichya Gwich’in Band List, if they wish. The Complainant has confirmed that she no longer wants this to happen.
III. Issues [44] The Complaint gives rise to the following issues:
a) Has the matter been rendered moot by the amendment of the Complainant’s category of registration in January of 2013, and by the removal of her name from the Band List for Fort Good Hope in April of 2013?
b) Have the Complainant and the Commission met their burden of proving a prima facie case of discrimination on the basis of family status and/or sex, contrary to s. 5 of the CHRA?
c) If there was prima facie discrimination, has the Respondent met its burden of proving that it had a bona fide justification for its initial refusals to make the requested amendments to the Complainant’s category of registration and band membership in June, 2010?
d) If there was prima facie discrimination that did not have a bona fide justification, what remedies would be appropriate?
IV. Summary of the Commission’s Submissions [45] In her letter dated June 2, 2010, the Complainant asked the Respondent to amend her category of registration from s. 6(1)(f) to s. 6(1)(c), based on her custom adoption, and to remove her name from the Band List for Fort Good Hope Band and add it to the Band List for the band of her adoptive parents the Arctic Red River Band (753 Gwichya Gwich’in NT). At issue is whether, in responding to those requests the Respondent was engaged in the provision of “services customarily available to the general public”, within meaning of s. 5 of the CHRA.
[46] “Services” within the meaning of s. 5 contemplates something of benefit being held out as a service and offered to the public, in the context of a public relationship. Because government actions are generally taken for the benefit of the public, the “customarily available to the general public” requirement in s. 5 will usually be present in cases relating to government conduct.
[47] Granting the Complainant’s requests would have led to the conferral of benefits that were not otherwise available.
[48] The Respondent was engaged in the provision of services within the meaning of s. 5 of the CHRA when it processed the Complainant’s request and made its determinations about her entitlements to the registration and band membership being sought as it involved an exercise of discretion by the Respondent, in the course of processing an application to determine whether an applicant does or does not meet the registration criteria in the Indian Act.
[49] Unlike Public Service Alliance of Canada v. Canada Revenue Agency, 2012 FCA 7 (“Murphy”); Matson et al. v. Indian & Northern Affairs Canada (now Aboriginal Affairs and Northern Development Canada), 2013 CHRT 13 (“Matson”); and Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21 (“Andrews”), this is a case where the Respondent had discretion in its processing of the Complainant’s request in interpreting the definition of “child” in the 1927 Indian Act. In initially choosing a narrower definition of the 1927 Indian Act that excluded custom adopted children, the Respondent was exercising discretion in the course of processing the application rather than applying mandatory legislative wording. Its choices in that regard are properly reviewable under s. 5 of the CHRA, as matters relating to the provision of services customarily available to the general public.
[50] During the period between the initial request (June 2, 2010) and the eventual amendment of registration category (confirmed January 3, 2013), the Respondent denied the service sought by the Complainant - namely, a proper non-discriminatory assessment of her entitlement to registration under s. 6(1)(c) of the Indian Act. This was a denial of a service within the meaning of s. 5(a) of the CHRA. In the alternative, during that same period, the Respondent adversely differentiated against the Complainant in the provision of a service. Specifically, in assessing her entitlement to registration under s. 6(1)(c) during this time, the Respondent chose to draw distinctions between biological children and custom adopted children. This was adverse differentiation within the meaning of s. 5(b) of the CHRA.
[51] The Respondent maintained its refusal of the Complainant’s request with respect to registration for at least two years after GEIRA came into force on January 31, 2011. The refusal to amend her registration category had negative impacts on the Complainant’s ability to transmit status entitlements to her descendants throughout this time period and ensuring government records properly reflected her custom adoption recognizing the correct parent-child relationship.
[52] In this case, the Respondent has acknowledged that the initial barrier to granting the request to amend registration category was that the Complainant was a custom adoptee, and as such was not treated as the “child” of her adoptive father under the 1927 Indian Act, and could only be registered under s. 6(1)(f) or 6(2). In this sense, the Respondent’s denial or adverse differentiation was based on the Complainant’s status as a custom adoptee - a matter that is captured under the prohibited ground of “family status” under the CHRA.
[53] In refusing to give legal effect to the custom adoption within the context of the registration scheme, the Respondent effectively excluded the Complainant for nearly two and a half years from accessing the category of 6 (1)(c) registration, which had been introduced in 1985 to partially remedy the historic sex discrimination in the marrying-out provisions of the Indian Act. In this sense, the discriminatory practice identified by the Commission, while rooted in issues of family status, also had an intersecting adverse impact based on the Complainant’s identity as an aboriginal woman.
[54] The Respondent’s changes in its position on registration and band membership of the Complainant is effectively an admission that the previous exclusionary approach was not “reasonably necessary” within the meaning of the applicable jurisprudence, and that the previous approach therefore did not have a bona fide justification within the meaning of the CHRA and applicable case law.
[55] The Complaint should not be dismissed for mootness as there are still live remedial claims since the revisions by the Respondent to its position vis a vis registration and band membership. In order to adjudicate its merits, the Tribunal must, among other things, determine whether the Respondent has or has not engaged in discriminatory practice.
[56] The Tribunal should order under s. 53(2)(a) that the Respondent take measures, in consultation with the Commission on the general purposes of the measures, to prevent the same or similar discriminatory practices from occurring in the future.
V. Summary of the Complainant’s Submissions [57] The Complainant agrees with and adopts the Commission’s submissions.
[58] The Complainant argues that she and her descendants have been denied the administrative services mandated by Treaty 11, in particular, proper treaty band membership, annuity payment and education funding and record keeping.
[59] By amendment of the Indian Act entitlement rules in 1985 (Bill C-31), registration is no longer linked to statutory band membership and can have no effect on any existing treaty band membership. As a result, Indian Act registration has had no relevance or effect on treaty entitlement since 1982 as a result of the enactment of the Constitution Act, and at least since 1985, treaty annuity paylists are not the same as statutory Band Lists and do not determine statutory band membership. Legal entitlement to band membership is based on different personal qualifications. Treaty band membership is constitutional and based exclusively on natural descent from an original treaty adherent and current family status. Statutory band membership is not constitutional and is based exclusively on either s. 11 rules or s. 10 delegated band determined rules under the Indian Act, neither of which necessarily require natural descent or any particular family status.
[60] With the repeal of s. 67 of the Canadian Human Rights Act in 2008, extended in 2011 to “...complaints against a First Nations government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, .” all of the Indian Registry administrative services, including both regular statutory registration as well as verification of the relevant facts of individual treaty entitlement and treaty band affiliation, are now subject to both human rights principles and constitutional protection of all existing aboriginal, treaty or land claim rights. The constitutional obligation to give primacy to existing aboriginal and treaty rights when applying human rights principles to the Indian Act is confirmed as follows:
1.1 For greater certainty, the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
[61] In accordance with the terms of Treaty 11, the Complainant, her two children and her three grandchildren are all Treaty 11 Indians and have been since the time of each of their respective births, because they have all been officially recognized by Canada to be natural descendants of original treaty adherents and have been officially recognized by Canada to be either Treaty 11 adherents or are children of adherents. They are also all members of the Loucheaux Indians No. 6 Treaty 11 Band of Arctic Red River, because that is the treaty band that Canada has recognized the Complainant to have been a member of as a result of her aboriginal custom adoption and her natural descendants are entitled to be members of that same treaty band which still exists on treaty annuity paylists. All of which has been guaranteed to each of them by s. 35 of the Constitution Act, 1982 since April 17, 1982.
[62] Treaty 11 Indian adherents are also constitutionally entitled to be correctly identified in all of Canada’s administrative records including treaty annuity paylists and the Indian Register.
[63] After the first annuity payment to any Treaty 11 adherent, records of all subsequent annual payments are maintained as perpetual service provided by the Respondent with no adhesion re-qualification ever required and all family status or band affiliation changes are simply noted on the paylists at the time of each annual payment.
[64] Up to and including the year 2011, the Respondent has provided necessary Treaty 11 administrative services and paid treaty annuity to the Complainant and each of her children for every year of their lives from their respective births. The Complainant and her children have been thereby officially recognized as Treaty 11 adherents and paid treaty annuities based on nothing more than their birth records showing that they are natural descendants of original 1921 Treaty 11 adherents. Official birth records, where they even exist, are all that any descendent Treaty 11 adherent since 1921 has ever been required to provide proof of their treaty entitlement and to be included on the Treaty 11 annuity pay list for the treaty band of their family ancestors.
[65] In 2011, the Complainant’s children provided the Respondent with copies of the birth certificates for their natural children and, as heads of their families, requested payment of Treaty 11 annuity for themselves and their children. The Respondent refused to pay any annuity for any of the Complainant’s grandchildren on the grounds that they were not registered under the Indian Act.
[66] The Complainant argues that the decisions made in 2011 by the Respondent’s regional treaty administration official effectively denied goods (treaty annuity) and services (inclusion on annuity pay list), which are the only services offered by the Respondent to facilitate Treaty 11 adhesion, and the denial was based on the irrelevant fact of the grandchildren’s Indian Act status as “non-registered” children and were thereby arbitrarily deemed not to be descendants of original Treaty 11 adherents. The Complainant argues those administrative decisions have no justification under either the terms of Treaty 11 or any provision of the Indian Act, and are therefore infringement of constitutionally guaranteed Treaty 11 rights.
[67] Pursuant to s. 53(2)(b) of the CHRA, the Complainant seeks a declaration that the Complainant, her two children and her three grandchildren have all been Treaty 11 Indians from their respective births and are therefore personally entitled to the existing rights, benefits and privileges constitutionally guaranteed to Treaty 11 Indians, including membership in the Complainant’s originally named Loucheaux Indians No.6 Treaty 11 Band of Arctic Red River, and to be officially recorded as such on the treaty annuity paylists for that Treaty 11 band.
[68] Pursuant to s. 53(2)(c) and (d) of the CHRA, the Complainant claims, for the benefit of her three grandchildren, immediate payment by the Respondent of Treaty 11 annuity arrears for each year of each of their respective lives and reimbursement of all tuition expenses incurred to date to obtain the educational instruction of those grandchildren which the Respondent promised to pay under the terms of Treaty 11 but have withheld pending the outcome of this Complaint.
[69] As the victims of willful and reckless conduct, the Complainant claims that she, her two children and three grandchildren are each entitled to claim additional compensation from the Respondent under s. (3) of the CHRA.
VI. Summary of the Respondent’s Submissions [70] There is no longer a live controversy between the parties relating to the Complainant’s registration entitlement as a result of the Respondent’s reversal of its position on December 9, 2013 and, as such, this issue is moot.
[71] There is no longer a live controversy between the parties in relation to statutory band membership as a result of the Respondent’s reversal of its position on deletion of her and her descendants’ names from the Fort Good Hope Band List on April 29, 2013 and because the Complainant has withdrawn her request to have her name added to the Gwichya Gwich’in Band List and, as such, this issue is also moot.
[72] The Complaint is a challenge to legislation, and nothing else, just as in Matson. The Complaint addresses interpreting s. 6 of the Indian Act, and interpreting the term “child” in the 1927 Indian Act.
[73] The Registrar interpreted the word “child” in order to apply s. 6 to determine correctly the Complainant’s registration category as an Indian and in so doing, exercised no discretion. When the Registrar subsequently reviewed and changed its interpretation, it also did not exercise discretion (s. 6 affords no discretion regarding the treatment of custom adoptees), but rather corrected an erroneous interpretation of the statute.
[74] The Complainant takes issue, not with the manner in which her application for registration was processed, but rather with the Registrar’s statutory interpretation of the word “child” and the eligibility rules prescribed in s. 6 of the Indian Act. These criteria, prescribed by Parliament, which has jurisdiction to so under s. 91(24) of the Constitution Act, cannot reasonably be termed a “service”. Parliamentary law making is not a service.
[75] The term “service” does not contemplate Parliament’s definition of “Indian” under the Indian Act. A number of specific features militate against such a construal of “service”: the reasonable accommodation requirement, the concept of un