Tsuu T’ina Nation: Implications for Community Membership and the Inherent Right of Aboriginal Governance
The Supreme Court of Canada dismissed application for leave to appeal on October 30, 2008 in Tsuu T’ina Nation v Bearchief 2008 ABCA 74 [Tsuu T’ina Nation]. Jakki Warkentin canvassed the facts of the case in her November 4, 2008 post, and therefore it is unnecessary to provide complete details again at this time. Instead, it is sufficient to reiterate that the Alberta Court of Appeal found in favour of the Tsuu T’ina Nation, ultimately lifting the interim injunction that had been ordered by the chambers judge, which restrained the Band from evicting the applicants, who are residents of the reserve. However, more significant for the purposes of the current post is the question raised by several of the applicants concerning the constitutionality of s. 11(1)(c) of the Indian Act, RSC 1985, c I-5, which deals with Band membership requirements. Indeed, the broader relevance of Tsuu T’ina Nation relates to the inherent right of Aboriginal governance, and arguably, the resultant authority of Aboriginal communities to determine community membership. This brief commentary argues that in requiring judicial determination of the constitutionality of s. 11(1)(c), Tsuu T’ina Nation potentially pits Aboriginal governing authority to determine community membership against potential community members themselves.
This broader theme is reminiscent of some of the central arguments that underpinned Bill C-31 of 1985, An Act to Amend the Indian Act, which ultimately changed the Band registration system so that membership entitlement was no longer based on gender discriminatory rules. For instance, the statute provides that those who lost their membership in a band in the past based on blood quantum requirements through paternal descent can apply to regain membership. At the same time, bands are given control over community membership based on their own membership rules, an area of authority which many Aboriginal communities assert is rooted in their inherent right to self-government. However, where a Band seeks to establish its own membership rules under the Indian Act, a majority of band electors must consent to the band’s control of membership and the set of membership rules adopted, while existing band members and those who are eligible to have band membership restored do not lose their entitlement to band membership because of something that occurred before membership rules were adopted.
Assessing the Constitutionality of s. 11(1)(c) of the Indian Act: The Peshee Action
Essentially, the final holding in Tsuu T’ina Nation simply lifts the injunction ordered by the chambers judge, providing that membership based on the constitutional question raised by the residents must be determined before the appellants can be evicted from the Tsuu T’ina Nation. As held by the Alberta Court of Appeal,
the Band is not entitled to a final notice of eviction under the present Notices until the relevant constitutional questions raised by the respondents have been determined. In the meantime, the respondents cannot be evicted on the basis of their possible status as non-members. As a result, the respondents have failed to establish the irreparable harm claimed and there is no need for an interim injunction at this stage” (para 20).1
In this respect, the lifting of the injunction was arguably not a loss for the residents in question, nor was the dismissal of the residents’ application for leave to appeal to the Supreme Court of Canada. Instead, the judicial determination is still forthcoming in respect of their constitutional question concerning membership rights.
An examination of the specific constitutional question raised by the residents is related to the Alberta Court of Appeal’s ruling in Peshee v Tsuu T’ina Nation, 2007 ABCA 211 [Peshee] (referred to as the “Peshee Action” by the Alberta Court of Appeal in Tsuu T’ina Nation). In particular, the residents filed notice of a constitutional question, asserting that paragraph 11(1)(c) of the Indian Act breaches their Aboriginal rights under section 35 of the Constitution Act, 1982 because it “fails to include the descendants of persons automatically reinstated to Band Membership by paragraph 11(1)(c)…with respect to membership” in the Nation. Moreover, the residents assert that the Nation’s Membership Code and Regulations breach their rights under section 15 of the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982 because they disqualify individuals from band membership based on gender discriminatory provisions (Peshee, para 6).2
The contested section of the Indian Act reads as follows:
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…
Section 6(1)(c) provides that
Subject to section 7, a person is entitled to be registered if…
the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions…3
In McIvor v The Registrar (Indian and Northern Affairs Canada), 2007 BCSC 827, similar questions were raised concerning the constitutionality of section 11(1)(c) of the Indian Act. In this case, the British Columbia Supreme Court held that section 6 of the 1985 Indian Act indeed infringed the plaintiff’s section 15(1) equality rights, and the infringement could not be saved under section 1 (at paras. 341-343). Specifically, the Court found that
the registration provisions embodied in s. 6 of the [Indian Act] continue the very discrimination that the [Bill C-31] amendments were intended to eliminate. The registration provisions of the [Indian Act] continue to prefer descendants who trace their Indian ancestry along the paternal line over those who trace their ancestry through the maternal line. The provisions prefer male Indians and their descendants to female Indians and their descendants. These provisions constitute discrimination, contrary to ss. 15 and 28 of the Charter based on the grounds of sex and marital status (para 288).
This case is likely to hold persuasive value when the constitutional question, raised in Peshee and Tsuu T’ina Nation, is determined.
Implications for the Inherent Right of Aboriginal Governance
Yet, despite the assertions of the residents in question, the Tsuu T’ina Nation has maintained that the real issue concerns the authority of the Band to determine which residents can lawfully hold reserve land. Section 20(1) of the Indian Act is relevant in this regard, and provides that “[n]o Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of the land has been allotted to him by the council of the band.” Both the allotment of land and the determination of membership are arguably important aspects of a Band’s governing authority. Control over lands and community membership are central to the inherent right of Aboriginal governance. While the focus of R v Powley,  2 SCR 207 [Powley] concerned Métis rights under section 35 of the Canadian Constitution, the ruling is arguably relevant for broader issues of Aboriginal membership as well. In Powley, the Supreme Court of Canada held that the determination of membership in an Aboriginal community is crucial since the exercise of Aboriginal rights is contingent on that membership (para 24). Moreover, in verifying membership, not only must an individual self-identify with the community in question and demonstrate ancestral connection, but he or she must also be accepted by the community (paras 31-33). This final requirement is dependent on the determination of the community in question, which is where Aboriginal governance powers come into play.
Canadian government policy on the inherent right of Aboriginal governance has highlighted these areas of authority. In particular, the 1995 Inherent Right Policy,4 which still guides the federal government, accepts the right of Aboriginal peoples to govern themselves, decide what is best for their communities, and ultimately, to exercise the responsibility required to achieve self-governance. The policy also recognises the inherent right of Aboriginal governance as an existing, constitutionally-protected right under section 35(1) of the Constitution Act, 1982, while accepting the fact that Aboriginal governments are diverse, with different community objectives, varying community characteristics, and governance goals. The policy maintains that Aboriginal peoples should have the right to determine matters “internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to the land and their resources.” It seems apparent that applying a set of required characteristics to Aboriginal communities, as embodied in the Indian Act, could be considered colonial in nature. Instead, an Aboriginal community should have authority to decide how to define itself, its membership, and how to determine land possession. Such decisions lie at the heart of Aboriginal governance.
At the same time, where does this leave community members who have been discriminated against based on gender discriminatory practices or other factors? Should not these members have recourse against discrimination? In Corbiere v Canada (Minister of Indian and Northern Affairs),  2 SCR 203, the Supreme Court of Canada held that disallowing off-reserve members the right to vote in Band Council elections was a discriminatory practice, and consequently section 77(1) of the Indian Act was inconsistent with section 15 of the Charter and could not be saved under section 1. In this instance, while the ruling pertained specifically to the voting rights of off-reserve band members, the discrimination experienced by these individuals was arguably analogous to that experienced by the residents in Tsuu T’ina Nation. In both instances, the individuals in question experienced discrimination related to Band membership status and corresponding membership restrictions imposed by the Bands in question.
Ultimately, it appears that the judicial determination of the constitutional question raised in Tsuu T’ina Nation may be an onerous task. These cases have ultimately pitted Aboriginal governing authority to determine community membership against community members themselves. The Court will need to achieve a delicate balance between the inherent right of Aboriginal governance of the Tsuu T’ina Nation and the equality and Aboriginal rights of the residents in question.
1 In RJR-MacDonald Inc v Canada (Attorney General),  1 SCR 311, the Supreme Court of Canada laid out a tripartite test for granting an interim injunction, wherein the applicant must show that there is a serious question to be tried, that irreparable harm will result if the injunction is not granted, and that the balance of convenience favours granting the injunction (348).
2 Section 15 constitutes the equality rights provision of the Canadian Charter of Rights and Freedoms, Part I Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, while section 35 deals with Aboriginal and treaty rights for Indian, Inuit, and Métis peoples. Further details concerning the Nation’s membership requirements were not provided.
3 April 17, 1985 is the date that An Act to Amend the Indian Act, SC 1985, c 27 came into force.
4 Department of Indian Affairs and Northern Development, Federal Policy Guide, Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (Ottawa: Public Works and Government Services, 1995).