Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] N.R. TBEd. JL.028

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 16, 2010
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. JL.028;2011 SCC 37;[2011] 2 SCR 670;334 DLR (4th) 4;505 AR 1;418 NR 101

Peavine Métis Settlement v. Alta. (SCC) - Civil rights - Charter - Voluntary registration under Indian Act precludes membership in Métis settlement

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Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2011] N.R. TBEd. JL.028

Her Majesty The Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and Registrar, Metis Settlements Land Registry (appellants) v. Barbara Cunningham, John Kenneth Cunningham, Lawrent (Lawrence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham, Ray Stuart and Peavine Métis Settlement (respondents) and Attorney General of Ontario, Attorney General of Quebec, Attorney General for Saskatchewan, East Prairie Métis Settlement, Elizabeth Métis Settlement, Métis Nation of Alberta, Métis National Council, Métis Settlements General Council, Aboriginal Legal Services of Toronto Inc., Women's Legal Education and Action Fund, Canadian Association for Community Living, Gift Lake Métis Settlement and Native Women's Association of Canada (intervenors)

(33340; 2011 SCC 37; 2011 CSC 37)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

July 21, 2011.

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, in a decision reported at 424 A.R. 271, dismissed the application. The applicants appealed.

The Alberta Court of Appeal, in a decision reported at 457 A.R. 297; 457 W.A.C. 297, allowed the appeal. The applicants were granted a declaration of constitutional invalidity of ss. 75 and 90 of the MSA and a direction of severance regarding those provisions, together with an order in the nature of mandamus directing the Registrar to restore the applicants' names to Peavine's membership list. The relief was retroactive to the date upon which the applicants' names were removed from that list. The Minister of Aboriginal Affairs and Northern Development appealed.

The Supreme Court of Canada allowed the appeal.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Under ss. 75 and 90(1)(a) of the Métis Settlement Act (MSA), 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 (right to liberty) - The Supreme Court of Canada held that "[i]t is not necessary to decide whether place of residence is protected by s. 7 because, as found by the chambers judge, any impact on liberty has not been shown to be contrary to the principles of fundamental justice, as required for a s. 7 claim. The deprivation is neither arbitrary nor grossly disproportionate, for the reasons discussed in connection with the s. 15 claim. As the chambers judge put it, '[r]equiring aboriginal adults who might otherwise meet the definition of both Indian and Métis to choose which legislative scheme they wish to fall under, the Indian Act or the MSA, is not a requirement which is grossly disproportionate to the interest of Alberta in securing a land base for the Métis'" - See paragraphs 92 to 95.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs -  The Supreme Court of Canada stated that "s. 15(2) is aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. It does this by affirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others." - See paragraph 40.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs -  The Supreme Court of Canada stated that "[t]he purpose of s. 15(2) is to save ameliorative programs from the charge of 'reverse discrimination'. Ameliorative programs function by targeting specific disadvantaged groups for benefits, while excluding others. ... The underlying rationale of s. 15(2) is that governments should be permitted to target subsets of disadvantaged people on the basis of personal characteristics, while excluding others. It recognizes that governments may have particular goals related to advancing or improving the situation of particular subsets of groups. Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice." - See paragraph 41.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Under ss. 75 and 90(1)(a) of the Métis Settlement Act (MSA), 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 Supreme Court of Canada held that ss. 75 and 90(1)(a) of the MSA did not contravene s. 15 of the Charter - The distinction was based on an analogous ground of discrimination - The preamble, wording, legislative history, and social context of the MSA combined to support the conclusion that the "MSA is not a general benefit program, but a unique scheme that sought to establish a Métis land base to preserve and enhance Métis identity, culture and self-government, as distinct from Indian identity, culture and modes of governance. In seeking this objective, it reflects the constitutional scheme, which endorses Indians, Métis and Inuit as distinct Aboriginal groups with distinct identities, cultures and rights." - The exclusion from membership in any Métis settlement of Métis who were also status Indians served and advanced the object of the ameliorative program - It corresponded to the historic and social distinction between the Métis and Indians, furthered realization of the object of enhancing Métis identity, culture and governance, and respected the role of the Métis in defining themselves as a people - See paragraphs 56 to 88.

Civil Rights - Topic 5586

Equality and protection of the law - Affirmative action or ameliorative programs - Particular programs - [See all Civil Rights - Topic 939 ].

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - [See third Civil Rights - Topic 939 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See third Civil Rights - Topic 939 ].

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. 26].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, appld. [para. 28].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120, refd to. [para. 39].

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 33 O.R.(3d) 735 (C.A.), affd. [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, consd. [para. 50].

Lovelace v. Ontario - see Perry et al. v. Ontario.

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. 80].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 93].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(2) [para. 37].

Authors and Works Noticed:

Alberta, Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta's Metis Settlements (1984), generally [paras. 14, 15].

Alberta, Report of the Royal Commission Appointed to Investigate the Conditions of the Half-Breed Population of Alberta (1936), generally [para. 9].

Counsel:

Robert J. Normey and David N. Kamal, for the appellants;

Kevin C. Feth, Q.C., and Jeremy L. Taylor, for the respondents;

Janet E. Minor and Mark Crow, for the intervenor, the Attorney General of Ontario;

Isabelle Harnois, for the intervenor, the Attorney General of Quebec;

Written submissions only by P. Mitch McAdam and James Fyfe, for the intervenor, the Attorney General for Saskatchewan;

Richard B. Hajduk, Rodger C. Gibbs and Jeffrey Beedell, for the intervenor, the East Prairie Métis Settlement;

Thomas R. Owen and Tara Rout, for the intervenor, the Elizabeth Métis Settlement;

Beverly J.M. Teillet, for the intervenor, the Métis Nation of Alberta;

Jason Madden, Clément Chartier, Q.C., and Kathy L. Hodgson-Smith, for the intervenor, the Métis National Council;

Garry Appelt and Keltie L. Lambert, for the intervenor, the Métis Settlements General Council;

Jonathan Rudin and Mandy Wesley, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Dianne Pothier and Joanna L. Birenbaum, for the intervenor, the Women's Legal Education and Action Fund;

Laurie Letheren and C. Tess Sheldon, for the intervenor, the Canadian Association for Community Living;

Sandeep K. Dhir and Lindsey E. Miller, for the intervenor, the Gift Lake Métis Settlement;

Mary Eberts, for the intervenor, the Native Women's Association of Canada.

Solicitors of Record:

Attorney General of Alberta, Edmonton, Alberta, for the appellants;

Field, Edmonton, Alberta, for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Hajduk Gibbs, Edmonton, Alberta, for the intervenor, the East Prairie Métis Settlement;

Owen Law, Edmonton, Alberta, for the intervenor, the Elizabeth Métis Settlement;

Pape Salter Teillet, Vancouver, B.C., for the intervenor, the Métis Nation of Alberta;

JTM Law, Toronto, Ontario, for the intervenor, the Métis National Council;

Witten, Edmonton, Alberta, for the intervenor, the Métis Settlements General Council;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Women's Legal Education and Action Fund, Toronto, Ontario, for the intervenor, the Women's Legal Education and Action Fund;

ARCH Disability Law Centre, Toronto, Ontario, for the intervenor, the Canadian Association for Community Living;

Field, Edmonton, Alberta, for the intervenor, the Gift Lake Métis Settlement;

Law Office of Mary Eberts, Toronto, Ontario, for the intervenor, the Native Women's Association of Canada.

This appeal was heard on December 16, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages by McLachlin, C.J.C., on July 21, 2011.