Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., 2009 ABCA 239

JudgeMcFadyen, Costigan and Ritter, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateMarch 04, 2009
Citations2009 ABCA 239;(2009), 457 A.R. 297 (CA)

Peavine Métis Settlement v. Alta. (2009), 457 A.R. 297 (CA);

      457 W.A.C. 297

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.115

Peavine Métis Settlement (not a party to the appeal/applicant) v. Barbara Cunningham, John Kenneth Cunningham, Lawrent (Laurence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham and Ray Stuart (appellants/applicants) and Her Majesty the Queen in Right of Alberta (The Minister of Aboriginal Affairs and Northern Development) and The Registrar, Métis Settlements Land Registry (respondents/respondents) and Elizabeth Métis Settlement (intervenor)

(0703-0275-AC; 2009 ABCA 239)

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

Alberta Court of Appeal

McFadyen, Costigan and Ritter, JJ.A.

June 26, 2009.

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 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.

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 chambers judge dismissed the application - The Alberta Court of Appeal allowed an appeal - Since the operation of s. 15(1) was, to some extent, circumscribed by s. 15(2) of the Charter, the court first considered s. 15(2) - To succeed on s. 15(2), the state had to show that the impugned program or legislation (a) had an ameliorative or remedial purpose, and (b) targeted a disadvantaged group identified by enumerated or analogous grounds - The chambers judge identified the applicants as being denied the benefits of settlement membership on the basis of their registration as Indians under the Indian Act, and correctly found that to be a personal characteristic analogous to an enumerated ground - Because the impugned provisions targeted the applicants, and those similarly situated, the second part of the s. 15(2) test was met - The MSA, as a whole, did have an ameliorative purpose - It sought to aid the enhancement and preservation of Métis culture and identity, and enable a degree of self-governance - It also sought to preserve a Métis land base - The impugned provisions excluded the applicants, and those similarly situated, from membership in Métis settlements - The effects of ss. 75 and 90 of the MSA were relatively arbitrary, potentially excluding Métis settlement members like the applicants, who, for a long time, had identified with and lived the Métis culture - Consequently, the impugned provisions did not rationally advance the purported legislative purposes of the MSA - Section 15(2) was not a bar to the consideration of s. 15(1) - See paragraphs 19 to 31.

Civil Rights - Topic 5586

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

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 (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 chambers judge dismissed the application - The Alberta Court of Appeal allowed an appeal - The chambers judge erred in her determination that the applicants' s. 15(1) Charter rights had not been breached - The impugned provisions had the effect of perpetuating the applicants' pre-existing disadvantage and of imposing on them differential treatment based on a stereotype that did not correspond with their actual circumstances - Settlement membership not only affected the right to meaningfully participate in the community, but also affected housing and transportation services, employment, recreation, land rights, and identity - The applicants were denied voting rights, participation in governance, and the right to maintain their cultural connection - The denial of voting and participatory rights alone was sufficient to indicate that significant interests were being affected - Therefore, the third part of the Law v. Canada (Minister of Employment and Immigration) (SCC) test was met and s. 15(1) of the Charter had been breached - See paragraphs 32 to 53.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - 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 Alberta Court of Appeal held that the impugned provisions violated s. 15 of the Charter and were not saved by s. 1 of the Charter - The respondents asserted that the objectives of the impugned provisions were pressing and substantial, or sufficiently important - The purported objectives were: to prevent persons who registered as Indians under the Indian Act after November 1, 1990 from accessing benefits and resources intended for Métis settlement members; to aid in protecting and distinguishing Métis culture from Indian/First Nation culture; and to provide Métis settlements with a means of controlling their membership - The impugned provisions led to an absolute removal of membership and settlement rights - The impugned provisions were not rationally connected to their purported underlying objectives - Futher, the limits those provisions imposed were not minimally impairing - See paragraphs 59 to 70.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - 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 the Charter (equality and protection of the law) - The intervenor argued that the MSA and its companion legislation was of a constitutional nature and ss. 75(1) and 90(1) enhanced aboriginal self-government and should be protected by s. 25 of the Charter - The Alberta Court of Appeal rejected the assertion - Although s. 25 of the Charter applied to existing and future constitutional rights acquired by aboriginal people, including Métis, that protection did not apply to any enactment which purported to set out or enhance existing constitutional practices and rights - If that were the case, it would render sacrosanct any enactment that purported to incorporate constitutional protection for aboriginals, no matter how odious the provision at issue might be - In the court's view, a new statutory enactment was open to challenge under the Charter, especially when it incorporated features of self-governance or some other imperative that were not previously part of how the community at issue existed - Section 25 had no application in this case - See paragraphs 71 to 74.

Civil Rights - Topic 8668

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

Cases Noticed:

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 11].

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; 2003 SCC 74, refd to. [para. 12].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 13].

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

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; 2000 SCC 37, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577; 2002 SCC 33, refd to. [para. 16].

Thomson v. Transportation and Safety Board (Alta.) - see Gonzalez v. Driver Control Board (Alta.) et al.

Gonzalez v. Driver Control Board (Alta.) et al. (2003), 330 A.R. 262; 299 W.A.C. 262; 2003 ABCA 256, refd to. [para. 16].

Columbia Pictures Industries Inc. et al. v. Gaudreault (2006), 345 N.R. 298; 269 D.L.R.(4th) 177; 2009 FCA 29, refd to. [para. 16].

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, consd. [para. 18].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1; 173 D.L.R.(4th) 1, refd to. [para. 20].

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; 2003 SCC 54, refd to. [para. 22].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2002), 159 O.A.C. 135; 59 O.R.(3d) 481; 212 D.L.R.(4th) 633, refd to. [para. 22].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 23].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2009), 384 N.R. 203; 200 SCC 9, refd to. [para. 34].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 34].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 124 D.L.R.(4th) 609, refd to. [para. 38].

Esquega et al. v. Canada (Attorney General), [2008] 1 F.C.R. 795; 316 F.T.R. 193; 2007 FC 878, refd to. [para. 40].

Halpern et al. v. Canada (Attorney General) et al. (2003), 172 O.A.C. 276; 65 O.R.(3d) 161; 225 D.L.R.(4th) 529 (C.A.), refd to. [para. 47].

Chippewas of Nawash First Nation et al. v. Canada (Minister of Fisheries and Oceans) et al., [2003] 3 F.C. 233; 298 N.R. 305; 2002 FCA 485, refd to. [para. 49].

Cameron et al. v. Nova Scotia (Attorney General) et al. (1999), 204 N.S.R.(2d) 1; 639 A.P.R. 1; 177 D.L.R.(4th) 611 (C.A.), refd to. [para. 50].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 50].

Baier et al. v. Alberta (2006), 384 A.R. 237; 367 W.A.C. 237; 2006 ABCA 137, affd. [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 55].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 58].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200, refd to. [para. 59].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, refd to. [para. 59].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 62].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161; 137 D.L.R.(4th) 142, refd to. [para. 68].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270; 61 D.L.R.(4th) 385, refd to. [para. 72].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250; 73 D.L.R.(4th) 686, refd to. [para. 72].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 137 D.L.R.(4th) 289, refd to. [para. 72].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 78].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 10 C.R.R.(2d) 1; 93 D.L.R.(4th) 1, refd to. [para. 80].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1), sect. 15(2), sect. 25 [para. 15].

Métis Settlements Act, R.S.A. 2000, c. M-14, sect. 75, sect. 90(1)(a) [para. 15].

Counsel:

K.S. Feth, S.K. Dhir and J.L. Taylor, for the appellants/applicants;

R.J. Normey and D.N. Kamal, for the respondents/respondents;

T.R. Owen, for the intervener/intervener.

This appeal was heard on March 4, 2009, by McFadyen, Costigan and Ritter, JJ.A., of the Alberta Court of Appeal. The following judgment of the Court of Appeal was filed by Ritter, J.A., on June 26, 2009, at Edmonton, Alberta.

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    ...relates to an Aboriginal, Treaty, or other right (Cunningham v Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239 [Cunningham], rev’d on other grounds 2011 SCC 37). She states that WLFN would have to establish an Aboriginal, Treaty, or other right that &......
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18 cases
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    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 18, 2013
    ...refd to. [para. 34]. Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. (2009), 457 A.R. 297; 457 W.A.C. 297; 2009 ABCA 239, revd. [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 34]. Cunningh......
  • Peavine Metis Settlement et al. v. Whitehead et al., (2015) 612 A.R. 25
    • Canada
    • Court of Appeal (Alberta)
    • September 9, 2015
    ...6240.7 ]. Cases Noticed: Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. (2009), 457 A.R. 297; 457 W.A.C. 297; 2009 ABCA 239, revd. [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 1, footno......
  • United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al., (2011) 509 A.R. 150 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 15, 2011
    ...160, consd. [para. 178]. Peavine Métis Settlement et al. v. Alberta (Minster of Aboriginal Affairs and Northern Development) et al. (2009), 457 A.R. 297; 457 W.A.C. 297; 2009 ABCA 239, consd. [para. 179]. Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.......
  • McCarthy v. Whitefish Lake First Nation #128, 2023 FC 220
    • Canada
    • Federal Court (Canada)
    • February 15, 2023
    ...relates to an Aboriginal, Treaty, or other right (Cunningham v Alberta (Minister of Aboriginal Affairs and Northern Development), 2009 ABCA 239 [Cunningham], rev’d on other grounds 2011 SCC 37). She states that WLFN would have to establish an Aboriginal, Treaty, or other right that &......
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3 books & journal articles
  • The continual reinvention of section 15 of the Charter.
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    • University of New Brunswick Law Journal No. 64, January 2013
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    ...Development) v Cunningham, online: LEAF at paras 19-21. In contrast, see the decision of the Alberta Court of Appeal in Cunningham, 2009 ABCA 239 at paras 28, (191) Hamilton & Koshan, "Not Getting It", supra note 8 at 69; Denise Reaume, "Equality Kapped: Alberta v Cunningham" (2011), on......
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    • Ottawa Law Review Vol. 43 No. 3, December 2012
    • December 30, 2012
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