Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., 2007 ABQB 517

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 26, 2007
• Citations: 2007 ABQB 517;(2007), 424 A.R. 271 (QB)

Peavine Métis Settlement v. Alta. (2007), 424 A.R. 271 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AU.052

Peavine Métis Settlement, Barbara Cunningham, John Kenneth Cunningham, Lawrent (Lawrence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham and Ray Stuart (applicants) v. Her Majesty the Queen in Right of Alberta (The Minister of Aboriginal Affairs and Northern Development) and the Registrar, Métis Settlements Land Registry (respondents) and Elizabeth Métis Settlement (intervenor)

(0603 14676; 2007 ABQB 517)

Indexed As: Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

August 13, 2007.

Summary:

The individual applicants were long time registered members of the Peavine Métis Settlement until removed from its membership list by the Registrar, Métis Settlements Land Registry pursuant to directions of the former Peavine Council under s. 90 of the Métis Settlements Act (MSA), which provided that a Métis settlement member who voluntarily registered as an "Indian" under the Indian Act was to be removed from the Métis settlement membership list on request by the settlement council. The current Peavine Council asked the Registrar to reinstate the individual applicants to the Peavine membership list. The Registrar declined to do so as s. 75 of the MSA prohibited an adult Métis person with Indian status from obtaining membership in a Métis settlement. The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened ss. 2(d), 7 or 15(1) of the Canadian Charter of Rights and Freedoms and could not be saved by s. 1. In the alternative, they sought an order declaring that application of those provisions to the individual applicants offended the Charter. Additionally, they asked for an order declaring that the Registrar had the power to reinstate the individual applicants to the Peavine membership list at the request of Peavine and an order in the nature of mandamus directing that the Registrar do so as requested by the current Peavine Council.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened s. 7 of the Charter (life, liberty or security of the person) - The Alberta Court of Queen's Bench dismissed the application - The purpose of the exclusion of registered Indians from the statutory regime was simply not to grant them any status under the MSA to claim membership benefits from a Métis settlement - The right to Métis settlement membership was, in essence, a right to reside on the settlement land - Sections 75(1) and s. 90(1) had the effect of impinging on the right of the applicants to choose to live on the Métis settlement - While that right had not been totally eliminated in terms of all of the applicants, it had been severely circumscribed - The MSA and associated legislation were intended to secure a similar land base and to provide for a measure of self-autonomy for Alberta Métis - Requiring aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose which legislative scheme they wished to fall under, the Indian Act or the MSA, was not a requirement which was grossly disproportionate to the interest of Alberta in securing a land base for the Métis - Further, there did appear to have been political targeting of the applicants - However, that was not due to arbitrariness in the legislation, but rather its selective application - See paragraphs 103 to 132.

Civil Rights -Topic 2160.6

Freedom of association - Limitations on - Indians, Inuit and Métis - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened s. 2(d) of the Charter (freedom of association) - The Alberta Court of Queen's Bench discussed the Dunmore factors (Dunmore v. Ontario (Attorney General) (SCC 2001)) and held that the applicants failed to meet the first factor (claim founded in fundamental Charter freedom rather than in access to a particular statutory regime) - The purpose of the exclusion of registered Indians from the statutory regime was simply not to grant them any status under the MSA to claim membership benefits from a Métis settlement - The right to Métis settlement membership was, in essence, a right to reside on the settlement land - The ability of a settlement member to exercise the privileges of membership, including the right to reside on settlement land, did not exist independently outside of the legislative regime established by the MSA - The right of residency, which was intrinsically tied to the ability to hold settlement membership, was properly characterized as a statutory benefit, not as a fundamental freedom - Membership was defined by statute - The benefits of such membership were granted by virtue of legislation - The applicants were seeking to participate in a particular channel or model of association, which would grant them access to a particular statutory regime - As such, it could not be said that the applicants' claim of under-inclusion was grounded in the fundamental freedom of association - See paragraphs 73 to 89.

Civil Rights -Topic 2160.6

Freedom of association - Limitations on - Indians, Inuit and Métis - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened s. 2(d) of the Charter (freedom of association) - The Alberta Court of Queen's Bench discussed the Dunmore factors (Dunmore v. Ontario (Attorney General) (SCC 2001)) and held that the applicants failed to meet the second factor (substantial interference with protected s. 2(d) activity) - The applicants had not met the evidentiary burden of demonstrating that the membership provisions of the MSA, which excluded them from membership in a Métis settlement, substantially interfered with their freedom of association - Although the ability to belong to a group might be considered central to freedom of association, the applicants had not established that it was "next to impossible" for them to have the capacity to pursue common goals - Moreover, the membership provisions resulted from extensive consultations between the Crown and representatives from the Alberta Federation of Métis Settlement Associations - The ability of settlements to determine their own criteria for membership was further evidenced by s. 222(1)(y) of the MSA, which enabled the General Council to pass policies respecting membership eligibility for purposes of ss. 75(3.1) and 90(1) - It was not unreasonable to assume that the General Council was given these powers, which were consistent with the advancement of self-governance, to allow Métis settlement communities to determine their own membership - See paragraphs 90 to 98.

Civil Rights -Topic 2160.6

Freedom of association - Limitations on - Indians, Inuit and Métis - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened s. 2(d) of the Charter (freedom of association) - The Alberta Court of Queen's Bench discussed the Dunmore factors (Dunmore v. Ontario (Attorney General) (SCC 2001)) and held that the applicants failed to meet the third factor (state accountable for the applicants' ability to exercise their fundamental freedom) - The MSA was designed to provide a limited statutory entitlement to certain classes of citizens, namely Métis people - The applicants had not established that their exclusion from the MSA's legislative regime reinforced private interference with their fundamental freedoms, or otherwise subjected them to negative legal and economic consequences - See paragraphs 99 to 102.

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - [See all Civil Rights - Topic 2160.6 ].

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened s. 15 of the Charter (equality and protection of the law) - The Alberta Court of Queen's Bench dismissed the application - The comparator group could best be defined as Métis who had not registered as Indians under the Indian Act and who met the other criteria for settlement membership in the MSA and the Transitional Membership Regulation - Sections 75(1) and 90(1) of the MSA drew a distinction between the applicants, Métis who have registered as Indians under the Indian Act (since the MSA came into effect), but who otherwise met the criteria for settlement membership, and the comparator group - This distinction was based on a personal characteristic of the applicants, their registration under the Indian Act - These sections resulted in the differential treatment of the applicants and those who were similarly situated, in that they were denied the benefits of settlement membership, including voting and formal participation in the community - The applicants voluntarily registered as Indians under the Indian Act, when they were adults, in order to obtain benefits available to Indians under that legislation - In doing so, they self-identified as Indians - The loss of their right to formally participate in the Métis community with which they had been associated on a long-term basis, if not for their whole life, was undoubtedly a severe consequence suffered by the applicants - However, by registering as Indians under the Indian Act, they had chosen to acquire other rights and benefits - Accordingly, ss. 75(1) and 90(1) of the MSA did not affect the human dignity of the applicants and, therefore, were not discriminatory - See paragraphs 133 to 206.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - Standing - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants (including individuals excluded from membership under ss. 75 and 90(1)(a) and a Métis settlement) sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened ss. 2(d), 7 or 15(1) of the Charter and could not be saved by s. 1 - The Alberta Court of Queen's Bench held that the individual applicants had standing to bring the application - The individual applicants lost their membership in Peavine as a result of the operation of ss. 75 and 90 of the MSA - They were directly affected by the operation of ss. 75 and 90 of the Act and thereby were entitled as of right to bring a Charter challenge in regard to those sections - See paragraphs 50 and 51.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - Standing - Under ss. 75 and 90(1)(a) of the Métis Settlement Act, Métis settlements had the right to exclude from membership individuals who registered as Indians under the Indian Act - The applicants (including a Métis settlement) sought a declaration that ss. 75 and 90(1)(a) of the MSA contravened ss. 2(d), 7 or 15(1) of the Charter and could not be saved by s. 1 - The Alberta Court of Queen's Bench held that the Métis settlement did not have standing to bring the Charter challenge - The first two requirements for public interest standing were satisfied - A serious legal issue was raised and the Métis settlement had a genuine interest in ensuring that individuals had not been deprived of entitlement to membership by way of legislation that potentially offended the Charter - However, the Métis settlement failed to satisfy the third requirement as the individual applicants themselves were raising the Charter issues - See paragraphs 52 to 58.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5646 ].

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - The individual applicants were long time registered members of the Peavine Métis Settlement until removed from its membership list by the Registrar, Métis Settlements Land Registry pursuant to directions of the former Peavine Council under s. 90 of the Métis Settlements Act (MSA) which provided that a Métis settlement member who voluntarily registered as an "Indian" under the Indian Act was to be removed from the Métis settlement membership list on request by the settlement council - A court order affirmed the removal - The current Peavine Council asked the Registrar to reinstate the individual applicants to the Peavine membership list - The Registrar declined to do so as s. 75 of the MSA prohibited an adult Métis person with Indian status from obtaining membership in a Métis settlement - The current Peavine Council brought an application seeking various relief, including a Charter challenge - The current Peavine Council challenged the provisions of the MSA in light of the Charter - The respondents asserted that the constitutional issues raised were not properly before the court and were a "backdoor" attempt to attack the court order - The Alberta Court of Queen's Bench rejected the assertion - At the time, the former Peavine Council had argued that there were individuals who had terminated their membership in the Settlement by voluntarily becoming registered as Indians under the Indian Act after November 1, 1990; and that their names should therefore be removed from the Settlement's membership list in accordance with s. 97(3) of the MSA - The applications judge had agreed - She held that the Minister and the Minister's delegate had a mandatory duty under ss. 90(2), 96(3) and 97(3) of the MSA to keep the membership list up to date and to remove a name when that individual's membership was lost pursuant to the MSA - As the constitutional issues raised in the present application were not before the applications judge, this application could not be considered an impermissible collateral attack on her order nor an abuse of process to the extent that it dealt with those issues, which were not res judicata - See paragraphs 40 to 49.

Cases Noticed:

Alberta (Minister of International and Intergovernmental Relations) v. Peavine Métis Settlement, [2001] 3 C.N.L.R. 1; 2001 ABQB 165, refd to. [para. 33].

Kasko Estate et al. v. Lethbridge Regional Hospital et al. (2006), 393 A.R. 28; 2006 ABQB 280, refd to. [para. 50].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 53].

Hislop et al. v. Canada (Attorney General) (2007), 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 53].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 53].

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 53].

Canadian Egg Marketing Agency v. Richardson - see Canadian Egg Marketing Agency v. Pineview Poultry Products et al.

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 54].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 54].

Borowski v. Canada (Minister of Justice) and Canada (Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 54].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 54].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 55].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201, consd. [para. 60].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 63].

Baier et al. v. Alberta (2007), 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 72].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 80].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 83].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia (2007), 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 86].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 103].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 104].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1, refd to. [para. 104].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 110].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 112].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 115].

Scrimbitt v. Sakimay Indian Band Council (1999), 178 F.T.R. 210 (T.D.), refd to. [para. 118].

Vaugeois v. Red Deer (City) (1999), 240 A.R. 89; 169 D.L.R.(4th) 744 (Q.B.), refd to. [para. 119].

Thurber v. Thurber (2002), 322 A.R. 242; 2002 ABQB 727, refd to. [para. 120].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 123].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 133].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 133].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 137].

R. v. Kapp (J.M.) et al. (2006), 227 B.C.A.C. 248; 374 W.A.C. 248; 271 D.L.R.(4th) 70; 2006 BCCA 277, leave to appeal granted (2006), 363 N.R. 394; 243 B.C.A.C. 320; 401 W.A.C. 320 (S.C.C.), refd to. [para. 141].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 153].

Workers' Compensation Board (N.S.) v. Laseur - see Workers' Compensation Board (N.S.) v. Martin et al.

Bear v. Canada (Attorney General) (2001), 212 F.T.R. 208 (T.D.), revd. (2003), 300 N.R. 57 (F.C.A.), leave to appeal dismissed (2003), 321 N.R. 395 (S.C.C.), refd to. [para. 159].

McIvor et al. v. Registrar of Indian and Northern Affairs Canada et al., [2007] B.C.T.C. 827; 2007 BCSC 827, refd to. [para. 167].

Chippewas of Nawash First Nation et al. v. Canada (Minister of Fisheries and Oceans) et al. (2002), 298 N.R. 305; 2002 FCA 485, refd to. [para. 182].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 186].

Six Nations of the Grand River Band v. Henderson, [1997] 1 C.N.L.R. 202 (Ont. Gen. Div.), refd to. [para. 200].

Egan and Nesbit v. Canada (1995), 182 N.R. 161 (S.C.C.), refd to. [para. 205].

R. v. Oakes (1983), 145 D.L.R.(3d) 123 (Ont. C.A.), refd to. [para. 207].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 207].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc. (1993), 162 N.R. 177; 18 Admin. L.R.(2d) 122 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 208].

Statutes Noticed:

Métis Settlements Act, R.S.A. 2000, c. M-14, sect. 75, sect. 90(1)(a) [para. 39].

Authors and Works Noticed:

Alberta, Métis Government Committee Report on the Métis Betterment Act and Regulations, Findings and Recommendations (MacEwan Report) (July 12, 1984), generally [paras. 9, 10].

Bell, Catherine E., Alberta's Métis Settlements Legislation: An Overview of Ownership and Management of Settlement Lands (1994), p. 9 [para. 184].

Canada, Royal Commission on Aboriginal Peoples Report (1996), generally [para. 27].

Hogg, Peter W., Constitutional Law of Canada (1997 Looseleaf Supp.), para. 37.2(d) [para. 54].

MacEwan Report - see Alberta, Métis Government Committee Report on the Métis Betterment Act and Regulations, Findings and Recommendations.

Counsel:

Sandeep K. Dhir and Thomas K. O'Reilly (Field LLP), for the applicants;

David N. Kamal (Alberta Justice), for the respondents;

Thomas Owen (Owen Law), for the intervener.

This application was heard on April 26, 2007, by Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 13, 2007.