April 8th, 2010
On March 11, the Supreme Court of Canada granted leave to appeal in Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239, a constitutional equality case centered on native rights legislation.
At issue were sections 75 and 90(1)(a) of the Métis Settlements Act, R.S.A. 2000, c. M-14 (“MSA“). The former prohibits status Indians (under the Indian Act, R.S.C. 1985, c. I-5) from obtaining Métis settlement membership; the latter calls for the termination of the Métis settlement membership of members who register as status Indians. The combined effect of these two provisions is that, subject to certain age exemptions, one cannot be both a Métis settlement member and a status Indian at the same time.
The complainants were family members and lifelong members and residents of the Peavine Métis Settlement whose membership was terminated. According to them, they applied for Indian status to receive health care benefits and did not intend to give up their Métis settlement membership. As a result of their exclusion from Peavine membership, they lost settlement benefits, including the right to participate as members of a Métis settlement community. From the reasons of the Alberta Court of Appeal:
5 … Ralph David Cunningham’s affidavit is typical of those that were filed. … Ralph states that he has lived on Peavine lands practically all his life. He also relates that his mother lost her Indian status when she married his Métis father, but subsequently regained it in 1985, meaning Ralph was also entitled to have Indian status, which is based on blood lines and marriage, not self identity. Because he suffers from diabetes and other medical conditions, Ralph applied for Indian status, which enables him to access a federal drug plan. The only benefit he accesses as a result of his Indian status is the drug plan and there is no similar plan available to Métis in Alberta. Ralph has never had any intention of living anywhere other than on Peavine[, such as on an Indian reserve].
The complainants thus sought a declaration that ss. 75 & 90(1)(a) were, inter alia, discriminatory and breached s. 15 of the Charter of Rights and Freedoms. The Alberta Court of Appeal begun its analysis by first considering s. 15(2) and whether the provisions could be saved thereunder. S. 15(2), constitutionally helpful for what it makes clear (notwithstanding its merits), allows for discriminatory state action otherwise contrary to s. 15(1) if it “has as its object the amelioration of conditions of disadvantaged individuals or groups” along enumerated/analogous grounds. Considering Indian status to be such a ground, the Court of Appeal thus proceeded, on the basis of the then recently decided case of R. v. Kapp, 2008 SCC 41, to analyse whether the “impugned … legislation … ha[d] an ameliorative or remedial purpose” and whether “the impugned provisions … rationally advance[d] their purported ameliorative purpose”.
The Court of Appeal found that ”[t]he MSA, as a whole, does have an ameliorative purpose. It seeks to aid the enhancement and preservation of Métis culture and identity, and enable a degree of self-governance. It also seeks to preserve a Métis land base.” As for whether the impugned policies respecting eligibility and termination of membership had a rational connection to this ameliorative purpose, the Court of Appeal rejected the argument accepted by the chambers judge that they “allow for self-governance and aid in preserving Métis resources by limiting settlement membership numbers and giving those who qualify for membership a greater benefit by lessening the dilution of resources available under the MSA and its companion legislation”:
26 … First, there is no evidence of any attempt by persons with Indian status who did not formerly have a substantial connection with Peavine, or some other Métis settlement, attempting to gain Métis status. Nor is there any evidence that this has been a problem historically. Rather, the history of the impugned provisions shows that they have only been invoked with respect to the appellants and that the Former Peavine Council did not have the furtherance of Métis culture or self-governance, nor the preservation of land base, in mind when relying on them to disqualify the appellants from settlement membership.
27 Secondly, excluding members based on their Indian status, even if only acquired for the purpose of receiving benefits, is not far removed from excluding members based on their ancestry, which does not instinctively advance the purported purposes of the MSA, particularly when that ancestry may also function as a necessary component of membership. Métis status requires an element of aboriginal lineage together with cultural self-identification as a Métis, established by living as a Métis with recognition of that fact by other Métis. Since being Métis requires aboriginal roots, if the aboriginal roots that make an individual eligible to acquire Indian status are the same aboriginal roots that qualify him or her as Métis, removal of members because of their Indian status may be at odds with the goal of enhancing Métis culture. The evidence established that in some settlements, one third of the members also hold Indian status, yet there is no suggestion that any settlement is being overrun by status Indians or that such numbers have diminished the purported aims of the MSA.
The Court of Appeal thus found the two provisions arbitrary in effect and not saved under s. 15(2). As for s. 15(1), there was no dispute that there was 1) differential treatment 2) along enumerated/analogous grounds; in dispute was whether this treatment met the third requirement in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497 (subject to further commentary in Kapp), that it “discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration”. The Court of Appeal found that sections 75 and 90(1)(a) of the MSA did discriminate against status Indians, and were thus unconstitutional (subject only to a s. 1 justification, which was not met in this case).
Before speaking on this case, I must first remark that I regard the organization of the full s. 15 exercise conducted here, presumably following exactly that which was laid down in Kapp, as somewhat strange. Engaging the test of whether discrimination is justified (at s. 15(2)) prior to even fully finishing off with the test of making it out (at s. 15(1)) would seem to put the cart before the proverbial horse. Anyway, regardless of the order in which prime issues ought to be considered, in Cunningham v. Alberta they are found at paragraphs 26 and 27 (block-quoted most immediately above). A couple of pertinent observations may be made.
First, the “rational connection” requirements seem to consider not only the logical connection but the “ground reality”: it is not simply whether the discrimination logically could realize its ameliorative purpose, but whether, looking at and assessing the facts, it does and should. Another thing is the distinction between being an Indian and being a status Indian; that is, simply being an Indian, by blood or otherwise, which the legislation does not discriminate against, and statutorily registering as one and being privy to all the statutory benefits and protections incumbent to that status, which the legislation does discriminate against. Something may be made of this distinction in the way of the main argument of limited aboriginal-directed resources, and it appears as though the chambers judges took this on by pointing out that the complainants “chose to pursue other rights and benefits as status Indians”. The Court of Appeal however, rubbished this on appeal. I am personally uncertain as to whether this particular distinction is valid and amounts to anything.
Finally, the Court of Appeal’s statement that, “[s]ince being Métis requires aboriginal roots, if the aboriginal roots that make an individual eligible to acquire Indian status are the same aboriginal roots that qualify him or her as Métis, removal of members because of their Indian status may be at odds with the goal of enhancing Métis culture” is hard to understand, at least in terms of the particular example provided of Ralph David Cunningham. In his case, it is not the same aboriginal blood quantum that makes him both Indian and Métis — he is Métis through his father and Indian through his mother. In any case, this does not detract from what I would consider to be the fundamental question, which is, if someone just so happens to statutorily qualify both as a Métis and an Indian, what principled reason does there exist to limit the entitlements that flow to him from both statuses to only one? Is resource allocation such a reason?
In parting, and put in perhaps the best possible terms I can muster: Can someone be “twice” the aboriginal?[filed: Aboriginal Law]