Montréal, Quebec, September 12, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and ALEXIS JORDANA MCIVOR-GRISMER
and
A.K.A. SQUAMISH NATION COUCIL
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of two decisions of the Squamish Nation Membership Appeals Committee (the Appeals Committee) dated July 22, 2004, which dismissed the applicants’ appeals to obtain membership in the Squamish Nation.
I. Membership in Squamish Indian Band
[2] The Squamish Nation is an aboriginal nation and a band as defined under the Indian Act, R.S.C. 1985, c. I-5 (the Act). According to the uncontradicted evidence submitted on behalf of the respondent, the Squamish Nation has existed since prior to contact with Europeans as a distinct, identifiable aboriginal group, with its own language and identified with a specific geographical area. Anthropologists have referred to this pre-Contact and pre-Indian Act entity as the Squamish Tribe.
[3] Although members of the Squamish Tribe were based on localized groups of Squamish people associated with specific villages, membership to these localized groups was controlled in accordance with criteria that were recognized throughout the larger Squamish Tribe. Membership to a Squamish local group depended on a blood-line connection to Squamish ancestors.
[4] The Squamish practice of defining its own membership was interrupted in 1874, with the coming into force of the former Indian Act (An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42 (31 Vict)) in British Columbia. From then on, the Department of Indian Affairs regulated membership in Indian bands, including the Squamish. This regulation was increased in 1951 with the adoption of a membership list maintained by the Department of Indian Affairs.
[5] The Department of Indian Affairs initially administered the False Creek, Capilano River, Missions Creek and Seymour River villages as individual Squamish bands. However, this system of administration was contrary to the Squamish system of organization. In 1923, the various Squamish bands were amalgamated into a single band called the Squamish Nation.
[6] In 1985, Parliament passed Bill C-31, which brought significant changes to the membership provisions – now found under section 10 of the Act – that allowed the band to regain control over their membership. The Squamish took immediate advantage of this provision. A membership Code that based qualification for membership on being a “natural-born” Squamish person, in accordance with Squamish traditions, was ratified on June 8, 1987. On July 14, 1987, the Department of Indian Affairs confirmed that the Squamish had assumed control over their own membership.
[7] Due to some problems with the application – “natural born member of the Squamish Nation” had not been defined under the 1987 Membership Code – consultation rounds took place between 1993 and 1996 to see if the Membership Code should be amended. Throughout this process, members of the Squamish Nation expressed a desire to maintain a blood-quantum requirement for membership in order to ensure the preservation of the collective Squamish identity and cultural traditions. This led to the adoption of the 2000 Membership Code.
[8] The Membership Code of 2000 established three categories of members: 1) Descendant members, 2) lineal members, and 3) acquired members. Descendant members are in a situation similar to that of members who had been classified as having 100% Squamish blood under the 1987 Code. They have the full ability to pass entitlement to membership to their children. Lineal members are in a situation similar to that of members who had previously been classified as having 50% Squamish blood under the 1987 Code. They have only limited rights to pass on membership to their children. Acquired members are primarily children with Indian status who have been adopted by two Squamish parents. This category also includes women from other First Nations who are married to Squamish members. A member of this category cannot pass on membership entitlement to his or her children.
II. Facts leading to the present judicial review application
[9] Alice Maxine Jaime Grismer (Jaime) and Alexis Jordana McIvor-Grismer (Jordana) are two sisters (the applicants) born respectively in 1976 and 1983. The applicants’ biological mother, Ms. Sharon McIvor, is a member of the Lower Nicola Indian Band. In 1992, while they were minors, the applicants moved to Ottawa with their mother and Ms. Teressa Nahanee, a member of the Squamish Nation.
[10] In 2001, Ms. McIvor and Ms. Nahanee made an application under British Columbia’s Adoption Act, R.S.B.C. 1996, c. 5, to legally adopt Jaime and Jordana as their children. An Order of Adoption was issued by the Supreme Court of British Columbia on November 29, 2001. Both sisters were adults at the time of the adoption. The applicants subsequently obtained Indian status under paragraphs 6(1)(f) and 11(2)(b) of the Act. On June 6, 2002 the applicants became members of the Lower Nicola Indian Band to which their biological mother belonged.
[11] On July 15, 2003, the applicants made an application for transfer of membership to the Squamish Nation based on their link to Ms. Nahanee, their adoptive mother. On August 12, 2003, the Squamish Nation Membership Committee denied the applications for the following reasons:
1. Your application was made under section 7 (b)(i) of the Squamish Nation Membership Code 2000. This section states:
7. (…) the following persons are entitled to have their names entered on the Membership List as lineal members:
(…)
(b) a person with
(i) one biological parent who is, or if no longer living would be, if alive, entered on or entitled to be entered on the Membership List as a descendant member (…).
We note that your application is based on the membership of your parent, Teressa Nahanee, in the Squamish Nation. However, Ms. Nahanee is not your biological parent and therefore you are not entitled through her to membership in the Squamish Nation under 7(b)(i).
2. The Membership Committee also considered your entitlement under section 9(a) of the Squamish Nation Membership Code 2000. This section states:
9. Subject to section 14, the following persons may apply to the Membership Committee to have their names entered on the Membership List as acquired members
(a) an Indian child under the age of 18 years who has been adopted by parents, both of whom are, or if no longer living, were members (…)
We note that at the time of your application, you were 20 years old [26 years old in Jaime’s case] and therefore exceeded the age restriction set out in section 9(a).
Therefore, based on the above, it is with regret that the Membership Committee of the Squamish Nation denies your application for membership in the Squamish Nation. If you disagree with the decision of the Membership Committee you may, pursuant to section 28 of the Squamish Nation Membership Code 2000, file an appeal to the Appeals Committee of the Squamish Nation. Section 28 requires than an appeal must be received by the Appeals Committee within 90 days of the date of your receipt of this letter.
[12] The applicants appealed the decisions to the Membership Appeals Committee. Ms. Nahanee told the Appeals Committee that she was having a house built on the Capilano Indian Reserve and that she planned to leave the house in her will to both of her adopted daughters. In order to be considered for the inheritance of the house, the Custom Housing Policy of the Squamish Nation required that the applicants be members of the Squamish Nation.
[13] On April 30, 2004, the Appeals Committee unanimously determined to uphold the decisions of the Membership Committee:
After carefully considering your presentation and the materials before it, the Squamish Nation Membership Appeals Committee (the Appeals Committee) unanimously determined to uphold the decision of the Squamish Nation Membership Committee (The Membership Committee).
The Membership Committee had determined that you were not eligible for membership under either 7(b)(i) or section 9(a) of the Squamish Nation Membership Code (the “Code”). At your appeal hearing you indicated that you were appealing the decision of the Membership Committee on the basis of section 7(b)(i) of the Code.
Section 7(b)(i) provides individuals with an entitlement to membership if they have one biological parent that is entered on the Squamish Nation’s membership list. Although Teresse Nahanee is a descendent member of the Squamish Nation, she is not your biological parent. You are therefore not entitled to membership under section 7(b)(i).
Section 9 of the Code permits certain individuals that have been adopted by Squamish Nation members to apply to have their names entered on the membership list. Your application under this section was denied by the Membership Committee, and you did not pursue an appeal pursuant to that section. Consequently, the Appeals Committee has not considered section 9.
The Code was approved by the membership of the Squamish Nation. If the Code changes in the future, you may be entitled to reapply for membership.
The Appeals Committee would like to point out that its decision has no effect on your native status or any entitlement you have with another First Nation.
The applicants are now challenging the decisions of the Appeals Committee on a number of grounds.
III. Parties’ submissions
[14] The parties’ respective submissions may be summarized as follows:
A. Applicants
[15] According to the applicants, courts have held that Indian bands as defined under the Act are recognized as federal Boards, tribunals or commissions under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. As such, the applicants affirm that the Squamish Nation’s decision is subject to the application of the Charter. Furthermore, under federal law, Indian governments are delegated creatures exercising only those powers given to them by the Minister of Indian and Northern Affairs. This is the meaning of “band” under the Act.
[16] The applicants affirm that membership to bands is usually controlled by the Registrar of Indian and Northern Affairs under section 9 of the Act. Bands who wish to control their membership can do so by following the process set out under section 10 of the Act. This is what the Squamish Nation did before it enacted its Squamish Nation Membership Code. Thus, the Squamish Nation was delegated the power to control its membership by following the process set out under section 10 of the Act.
[17] The applicants affirm that children who have been adopted are eligible for registration in bands that do not control its own membership. Under the Act, a “child” is defined as including both biological and adopted children. In determining whether to confer Indian status and membership in a band to an applicant, the Registrar who has control over band membership under section 9 of the Act makes no distinction between biological or adopted children.
[18] According to the applicants, the Squamish Nation does, however, make a distinction between adopted and biological children. Paragraph 7(b)(i) of the Membership Code states that a person is entitled to be added to the membership list as a “lineal member” if he or she has at least one biological parent who is, or if no longer living would be, if alive, entered on or entitled to be entered on the list as a descendant member. As adopted children of a Squamish Nation member, the applicants are of the view that paragraph 7(b)(i) should allow them to have the same benefit under the law as those born to Squamish Nation members.
[19] Thus, the applicants state that section 7 of the Membership Code is ultra vires the powers that have been delegated to the Squamish Nation under section 10 of the Act, on the basis that it discriminates against them on an analogous ground under section 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), namely, their status within the family as adopted children of a Squamish Nation member. As adopted children, the differential treatment the applicants have suffered under section 7 of the Membership Code reflects the stereotypical application of rules that promote the view that they are less capable or worthy of recognition or value as human beings equally deserving of concern, respect and consideration.
[20] The applicants also submit that section 9 of the Membership Code discriminates against them on an analogous ground under section 15 of the Charter by virtue of the fact that they have obtained Indian status through adoption.
[21] The applicants further submit that the power to control band membership is not an existing aboriginal right under section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Furthermore, the applicants do not believe that the Squamish Nation membership Code is protected under section 25 of the Charter. Section 25 of the Charter is not intended to shield powers which, under the Act, have been delegated to a band.
B. Respondent
[22] The respondent affirms that the applicants do not qualify for membership to the Squamish Nation because they do not possess the necessary blood lineage as required by the Membership Code. The impugned decisions rendered by the Appeals Committee are well founded in fact and law, and accordingly, should not be disturbed.
[23] The respondent submits that the applicants’ membership application was considered under provisions dealing with both lineal and acquired membership. However, neither the Membership Committee nor the Appeals Committee was of the view that membership could be granted to the applicants under either category.
[24] The respondent is of the view that the Squamish Nation’s power to control its own membership is not a delegated power under the Act, as suggested by the applicants. Relying on News v. Wahta Mohawks, (2000) 189 F.T.R. 218 at para. 20 (F.C.T.D.), the respondent affirms that section 10 of the Act allowed First Nations to “regain” control over their membership. Once control over membership is regained by a band, the Minister has no jurisdiction to either resume control of the band’s membership or prevent a band from assuming control over its membership. Therefore, section 10 of the Act does not delegate the power to control membership in a band. Rather, it restores that power to the band.
[25] The respondent says that courts have recognized that Indian bands are not mere creatures of status. They are pre-existing entities with a legal status of their own and having their own customs, laws, privileges, rights and obligations. As such, the Squamish Tribe would have had laws and customs concerning its own membership.
[26] According to the respondent, subsection 15(1) of the Charter does not apply to the decision of the Appeals Committee, by virtue of section 25 of the Charter and subsection 35(1) of the Constitution Act, 1982. Following the three-stage test set out in R. v. Van der Peet, [1996] 2 S.C.R. 507, [1996] 137 D.L.R. (4th) 289, for proving that a particular activity is an aboriginal right, the respondent affirms that the Squamish Nation’s right to define and control qualification for membership to their community is an aboriginal right pre-dating European contact that is protected by section 35 of the Constitution Act, 1982.
[27] According to the respondent, not only does section 25 of the Charter shield aboriginal rights – rights that are communal in nature – from individual rights as set out in the Charter, but it also shields “other rights or freedoms that pertain to the aboriginal peoples of Canada” as stated under the provision. Although the courts have not determined what constitutes “other rights”, the respondent contends that one such right is the Squamish Nation’s right to control its membership pursuant to section 10 of the Act. This right is a statutory right that may qualify for protection under section 25: see Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 52. Furthermore, it is not a temporary or revocable right. Once a First Nation assumes control over its own membership under section 10 of the Act, there is no provision that allows the Minister to reclaim control over the Band’s membership: see R. v. Kapp (2004), 31 B.C.L.R. (4th) 258, 2004 BCSC 958 at paras. 35-37, aff’d (2006) 69 W.C.B. (2d) 667, 2006 BCCA 277, leave to appeal to S.C.C. requested. (The applicants submitted the British Columbia Supreme Court decision in support of their arguments. The Court notes that this decision was affirmed by the British Columbia Court of Appeal in June of this year after the present application was heard. Two of the five judges considered the issue of whether the aboriginal commercial fishing rights granted under the licence in question constituted “other rights”. One found that section 25 had no application to the licence, while the other found that the benefit of the licences was protected by section 25 as an “other right or freedom”. Two other judges considered it unnecessary to consider section 25, while the fifth judge refrained from expressing any views on the subject).
[28] The respondent submits that it is critical to be sensitive to the aboriginal perspective in construing section 25 of the Charter. The European/North American concepts of individual rights may be at odds with collective rights and identity advanced by the Squamish. However, the communal nature of aboriginal interests should not be undervalued in the face of liberal notions of individual rights: see Campbell v. British Columbia (A.G.) (2000), 189 D.L.R. (4th) 333, 2000 BCSC 1123 at para. 155.
[29] The applicants base their claim on their status as adopted persons. However, the Squamish Nation is of the opinion that the applicants have not properly characterized their status for the purpose of subsection 15 (1) f the Charter. Since both Jaime and Jordana were adopted as adults, they should characterize themselves as persons adopted as adults.
[30] Finally, the respondent states that if the Court finds that section 7 of the Code is discriminatory pursuant to subsection 15(1) of the Charter, it is nonetheless saved by section 1 of the Charter. However, if the Court finds that section 1 cannot be saved by section 1 of the Charter, the respondent submits that the remedy should focus on section 9 of the Membership Code rather than section 7. If a remedy were to focus on section 7 of the Code, the applicants would be granted membership to the Squamish Nation automatically, thus defeating the purpose of a Membership Code. A remedy based on section 9 of the Membership Code would have less drastic effects.
IV. The equality rights issue
[31] The applicants say that they are discriminated against by section 7 of the Membership Code, on the basis that they are the adopted children of a Squamish parent, rather than her biological children. They rely on subsection 15(1) of the Charter which states:
|
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. |
[32] I am ready to assume for the purposes of this case that the applicants are right in asserting that the impugned provisions of the Membership Code must conform to the equality rights provision of the Charter. Indeed, for the reasons expressed below, I accept the applicants’ proposition that the impugned provisions of the Membership Code are discriminatory and that the applicants’ rights under subsection 15(1) of the Charter are infringed. However, I accept respondent’s alternative argument that the impugned provisions of the Membership Code are saved under section 1 of the Charter. Therefore, I will examine the issues of discrimination and justification separately.
A. Discrimination under subsection 15(1) of the Charter
[33] The Supreme Court set out the current approach in analyzing whether a provision violates subsection 15(1) of the Charter in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 at para. 88. The three-step approach is as follows:
|
(1) |
|
Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? |
|
|
(2) |
|
Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? |
|
|
(3) |
|
Does the differential treatment 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? |
|
[34] Where applicants are asking for equal treatment, they do so by reference to other people with whom they can legitimately invite comparison. As such, any consideration of an equality right must commence by establishing an appropriate comparator group. Justice Binnie stated in Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65 at para. 23, that:
The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter. An example of the former is the requirement that spouses be of the opposite sex; M. v. H., supra. An example of the latter is the omission of sexual orientation from the Alberta Individual's Rights Protection Act; Vriend v. Alberta, [1998] 1 S.C.R. 493.
[35] It is worth pointing out that while it is up to the applicants to make an initial choice of the person, group or groups with whom he or she wishes to be compared, the Court is not required to adopt the comparator group chosen by the applicants. The correctness of that choice is a matter of law for the Court to determine: see Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703, 2000 SCC 28, at paras. 47, 52 and 64; see also Hodge, above, at para. 21.
[36] The applicants submit that the appropriate comparator group is that of children who have one biological Squamish parent. I agree with the applicants.
1a). Does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics?
[37] The purpose of the Squamish Membership Code is to establish three different categories of membership: (a) descendant members, (b) lineal members and (c) acquired members. These three categories of Squamish membership are based on one’s blood connection to the Squamish nation.
[38] Descendant members (sections 5 and 6 of the Membership Code) are classified as having 100% Squamish blood. As a result, a descendant member has the full ability to pass entitlement to membership to his or her biological children. The adoptive mother of the applicants benefits from this specific status in the Squamish Nation.
[39] Squamish lineal members (section 7 of the Membership Code) are classified as having 50% Squamish blood. These members would have only limited rights to pass on membership to their children. The biological child of one descendant member and another person is entitled to lineal membership as that person would meet the 50% Squamish blood prerequisite. For the same reason, the biological child of two lineal members would also be entitled to benefit from this system.
[40] Acquired membership (sections 8 to 11 of the Membership Code) may be granted to the adopted Indian children of two Squamish members under the age of eighteen years. These children are not automatically entitled to membership, as the Membership Committee has some discretion in granting the status. Nonetheless, adopted children who may benefit from acquired membership have no ability to pass on their status to their own children.
[41] In the present case, we see that section 7(b)(i) of the Membership Code entitles a person to have his or her name entered on the membership list as lineal members if he or she has one biological parent who is, or if no longer living would be, if alive, entered or entitled to be entered on the membership list as a descendant member. The section clearly draws a formal distinction between biological and adopted children of Squamish parents. This finding is supported by the affidavit of Juliette Marlene Baker, an elected councilor of the Squamish Nation, where she stated at paras. 33-36:
At the consultation meetings leading to adoption of both the 1987 Code and the 2000 Code, the question of adopted people received a great deal of attention. The membership was very concerned not to extend membership rights to adopted people. There were two main reasons for this concern.
First, it is against the well-established tradition of the Squamish people to confer membership rights on persons who do not have Squamish blood.
Second, the committee and membership was concerned that the system established under the membership code could be open to abuse if adopted persons of one Squamish parent were given membership rights. This would create a loophole whereby persons who do not meet the requirements for lineal or descendant membership could be brought in as members through adoption.
For these reasons the Squamish Nation membership was of the view that adopted children of only one Squamish parent should not be entitled to membership.
[42] Ms. Baker’s affidavit clearly demonstrates the existence of a formal distinction based on personal characteristics shared by the applicants, who are the adopted children of one Squamish parent. The Squamish Membership Code does not grant lineal membership to adopted children who have only one Squamish parent, but allows children who have one biological Squamish parent to obtain this benefit.
1b). Does the impugned law fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
[43] According to the test set out in Law, above, three inquiries should be made by this Court. A positive finding under each step is required before the Court proceeds to the next step. The first step requires that a positive finding be made under either sub-question 1(a) or 1(b). Once a positive finding is made on either ground, the Court can proceed to the second inquiry. In light of my positive finding on the first ground, I see no need to examine ground 1(b).
2. Are the applicants subject to differential treatment based on one or more enumerated and analogous grounds?
[44] The applicants argue that the contested provisions of the Membership Code make a formal distinction on an analogous ground, namely, their status within a family as adopted rather than biological children of a Squamish Band member.
[45] The criteria for analogous grounds were described by Justices McLachlin and Bastarache in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1 at para. 13:
What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 - race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion.
[46] An infant cannot change his status as an adopted child. This is an immutable characteristic. In the case of children who have been adopted as adults, their status is constructively immutable. The status of the applicants as adopted children qualifies as an analogous ground. The respondent’s lineal membership policy clearly results in a differential treatment on the basis of this analogous ground.
3. Does the differential treatment 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?
[47] To answer this question this Court has to decide whether there is differential treatment that constitutes discrimination. It is not every distinction or differentiation in treatment at law that will transgress the equality guarantees of section 15 of the Charter. The applicants’ dignity needs to be affected by the differential treatment imposed by the Membership Code. The Court must therefore determine whether the provisions of the Membership Code in question impose a burden upon the applicants or withhold a benefit from them in a manner which either reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that they are less capable or worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration.
[48] An infringement of subsection 15(1) exists if it can be demonstrated that, from the perspective of a reasonable person, in circumstances similar to those of the applicants, who takes into account the contextual factors relevant to the claim, the legislative imposition of differential treatment has the effect of demeaning the applicants’ dignity. Using contextual factors, the applicants have to demonstrate the existence – or at least support an inference – that subsection 15(1) has been infringed by the Membership Code. There are a variety of such factors and the list is not closed. Some important contextual factors influencing the determination of whether section 15 has been infringed are, among others: 1) pre-existing disadvantage, stereotyping, prejudice, or vulnerability; 2) the correspondence between the grounds claimed and the actual need, capacity or circumstances of the claimant and others; (3) the existence of ameliorative purposes or effects of the impugned law upon a more disadvantaged person or group and (4) the nature and scope of the interest affected.
[49] In Law, above, at para. 63, the Supreme Court underscored that the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group. It affirmed that probably the most prevalent reason that a given legislative provision may be found to infringe s. 15(1) is that it reflects and reinforces existing inaccurate understandings of the merits, capabilities and worth of a particular person or group, thereby further stigmatizing those persons or members of those groups or resulting otherwise in their unfair treatment (see Law, above, at para. 64).
[50] It is necessary to analyze in a purposive manner the ground on which the subsection 15(1) claim is based when determining whether discrimination has been established. According to Law, above, at para. 70:
As a general matter, as stated by McIntyre J. in Andrews, supra, and by Sopinka J. in Eaton, supra, and referred to above, legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity. This is not to say that the mere fact of impugned legislation's having to some degree taken into account the actual situation of persons like the claimant will be sufficient to defeat a s. 15(1) claim. The focus must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity. The fact that the impugned legislation may achieve a valid social purpose for one group of individuals cannot function to deny an equality claim where the effects of the legislation upon another person or group conflict with the purpose of the s. 15(1) guarantee. In line with the reasons of McIntyre J. and Sopinka J., I mean simply to state that it will be easier to establish discrimination to the extent that impugned legislation fails to take into account a claimant's actual situation, and more difficult to establish discrimination to the extent that legislation properly accommodates the claimant's needs, capacities, and circumstances.
[51] Another factor will be the ameliorative purpose or effects of impugned legislation upon a more disadvantaged person or group in society. This factor is only relevant when dealing with legislation which has an ameliorative purpose. This is an argument which has been brought up by the respondent. According to the Squamish Nation, the ameliorative purpose and effect of the Membership Code is to preserve Squamish culture and identity. The respondent affirms that this is a determinative factor in the case.
[52] A further contextual factor that may be relevant in appropriate cases in determining whether the claimant's dignity has been violated is the nature and scope of the interest affected by the legislation. The Supreme Court stated, in Egan v. Canada, [1995], 2 S.C.R. 513 at para. 63: “If all other things are equal, the more severe and localized the economic consequences on the affected group, the more likely that the distinction responsible for these consequences is discriminatory within the meaning of section 15 of the Charter”.
[53] The question may be put in the following terms: do the impugned Membership Code provisions, in purpose or effect, violate essential human dignity and freedom through the imposition of disadvantage, stereotyping, social prejudice or vulnerability? The answer lies in part in the aim and effects of the Membership Code in providing a different membership status to members of the Squamish Nation based on bloodline and social reality.
[54] In the present case, the applicants submit that they are already disadvantaged because of their status as Indian women. The applicants also assert that section 7 of the Membership Code is demeaning to them because it is based on a stereotypical view of adopted children that makes such children unable to adapt and adopt the aboriginal customs and traditions of their Squamish parent. The theory behind the rejection of adopted children held in the Squamish Nation under its membership rules is founded in part on the stereotypes of adopted children who are not expected to share the values, culture and tradition of the Nation. The stereotype held by the Squamish Band, as reflected in its membership rules, is negative towards adopted children having only one Squamish parent.
[55] Here, the fact that lineal membership is not made available to adopted children reflects the fact that these children are not considered having the proper bloodline to benefit from this specific status. Here, the applicants are clearly denied lineal and acquired membership in the Squamish Nation based on their lack of proper ties to the community. These ties to the Squamish community are based on blood quantum. In my opinion, section 7(b)(i) discriminates against the applicants in legislation based on blood quantum insofar as concluding that adopted children cannot benefit from the same status as biological children.
[56] This being said, the respondent has stated on numerous occasions that its membership code was not discriminatory against the applicants because it recognized the possibility of granting membership to adopted children. It appears to me that the respondent’s proposition in this regard is not an element this Court should examine in order to determine whether or not the impugned provisions of the membership code infringe subsection 15(1) of the Charter. The possibility of adopted children acquiring membership in the Squamish Nation on certain conditions is a matter that is better addressed at the level of justification under section 1 of the Charter.
[57] While I recognize that the Squamish Nation has the right to implement its own membership code by virtue of section 10 of the Act, I am of the opinion that its provisions discriminate between adopted and biological children (as well as between adopted children themselves). The fact that children are adopted by one or two Squamish members is an immutable characteristic which cannot be changed by the applicants. The view that adopted children who have only one Squamish parent have a tie to the community that is too remote is based on a stereotypical construction resulting in discrimination.
[58] Accordingly, the applicants have demonstrated that from the perspective of a reasonable person, in circumstances similar to those of the applicants who take into account the contextual factors relevant to the claim, the differential treatment that affects them under paragraph 7(b)(i) of the Membership Code has the effect of demeaning their dignity.
B. Justification under section 1 of the Charter
[59] The protection offered by the Charter to the rights it enshrines is qualified by section 1 of the Charter which reads:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[60] The well-known test for section 1 was set out by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 at 138-140, 26 D.L.R. (4th) 200. It requires the Court to determine:
(a) whether the measure in question has a pressing and substantial objective; and
(b) whether the measure adopted to meet the objective is proportional to the degree to which the Charter right is infringed, having regard to whether:
(i) the measures adopted to achieve the objective are rationally connected to the objective itself;
(ii) the means adopted infringe the Charter right as little as reasonably possible; and
(iii) there is proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right.
1. Pressing and substantial objective
[61] The objective of section 7 of the Membership Code is to preserve the collective Squamish culture and identity, particularly in the face of an overwhelming non-native and non-Squamish population, in a manner consistent with Squamish heritage, culture and values. One means of doing so is the use of the traditional practice of requiring Squamish members to have a bloodline connection to the Squamish (Affidavit of Juliette Marlene Baker, paras. 13-18; Membership Code, preamble).
[62] The respondent submits that this objective meets the pressing and substantial objective standard. I agree with the respondent. In passing, I note that the applicants take the position that preservation of Squamish identity could not be the objective of the Membership Code because there are persons without Squamish blood who are members of the Nation. However, this argument overlooks subsection 10(4) of the Act, which required the Squamish to adopt a Membership Code that recognizes the membership of all existing members, regardless of whether those persons would qualify for membership under the new Code.
2. Proportionality
[63] The second stage of the Oakes test for section 1 justification is the proportionality test, which contains the three elements set out below. The proportionality test requires the court to balance the rights of the individual against the interests of the larger society.
(a) Rational Connection
[64] The first element of the proportionality test requires that the Court examine whether the measures adopted to achieve the legislative objective are rationally-connected to legislative objective itself. The respondent submits that this stage of the test is also met. Restricting membership to persons who have a bloodline connection to the Squamish Nation is rational way of preserving and protecting the unique Squamish culture and identity.
[65] I agree with the respondent.
[66] For instance, I note that self-identification, ancestral connection, and community acceptance were considered by the Supreme Court of Canada in R. v. Powley, [2003] 2 S.C.R. 207, 2003 SCC 43, as indicia of Métis identity for the purpose of claiming Métis rights under section 35 of the Constitution Act, 1982. In particular, it was decided that requiring an ancestral connection to a historic Métis community ensured that beneficiaries of section 35 rights had a real link to the historic community whose practices grounded the right being claimed. In this regard, the Court stated at paragraph 32: “We would not require a minimum “blood quantum”, but we would require some proof that the claimant’s ancestors belonged to the historic Métis community by birth, adoption, or other means.”
[67] At paragraph 34, the Supreme Court further notes in Powley:
It is important to remember that, no matter how a contemporary community defines membership, only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right. Verifying membership is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community.
[68] In the case at bar, the respondent has demonstrated that the bloodline connection requirement is not only a rational way of protecting Squamish culture and identity amongst its members, but according to the uncontradicted evidence submitted on behalf of the respondent, it is part of Squamish heritage and culture and constitutes a practice followed by the Squamish since before contact with the Europeans.
(b) Minimal Impairment
[69] The second element of the proportionality test is to determine whether the impugned law (here the membership rules of the Squamish Nation) infringes the Charter right as little as reasonably possible in order to achieve the desired objective.
[70] In Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, 151 D.L.R. (4th) 385 at paras. 58-59), the Supreme Court of Canada said that it is not necessary that the one measure that least intrudes on the Charter right be selected. All that is required is that the law fall “within a range of reasonable alternatives”. The Court went on to say, at para. 59:
This Court has already pointed out on a number of occasions that the social, economic and political spheres, where the legislature must reconcile competing interests in choosing one policy among several that might be acceptable, the courts must accord great deference to the legislature’s choice because it is in the best position to make such a choice.
[71] Notwithstanding the Squamish custom, I note that the respondent has addressed the potential rights of children who lack that bloodline requirement, in section 9 of the Membership Code. Section 9 provides for discretionary admission into Squamish membership for adopted children, both of whose adoptive parents are Squamish. In that case, the Membership Committee decides, on application, whether the child should be admitted to Squamish membership (Affidavit of Juliette Marlene Baker, para. 38).
[72] This was described as a “compromise” arrangement to make provision for adopted children. The Nation felt that to go further and include a provision for the adopted child of only one Squamish parent would unduly stretch Squamish laws and traditions and unreasonably open Squamish membership to non-Squamish people (Affidavit of Juliette Marlene Baker, para. 40).
[73] Considerable deference should be accorded to the Squamish in making this policy decision, particularly since it concerns questions of citizenship, Band custom and lineage (News v. Wahta Mohawks, above, at para. 20; Libman v. Quebec (Attorney General), above, at para. 59).
[74] In my opinion, in the case at bar, the “compromise” arrangement provided for in the Membership Code minimally impairs any rights that may exist for non-Squamish adoptees, while still achieving the objective of protecting Squamish culture and identity through traditional means.
[75] I am supported in my conclusion by the fact that in this case, the applicants’ biological mother, Ms. Sharon McIvor, is a member of the Lower Nicola Indian Band and that on June 6, 2002, the applicants became members of the Lower Nicola Indian Band. Ms. McIvor applied with Ms. Nahanee, who is a descendant member of the Squamish Indian Band, to legally adopt Jaime and Jordana as their children. In this context, the requirement that both adoptive parents be members of the Squamish Indian Band does not appear unreasonable, as it minimally impairs the rights of the applicants, whose Indian “citizenship” is not compromised, as it is recognized by the natural affiliation and appurtenance that they already have with the Lower Nicola Indian Band on the basis of their ancestry.
(c) Proportionate effect
[76] The third element of the proportionality test requires that the Court look at the proportionality between the effects of the impugned measure and its objective. Based on the evidence on record and the submissions made by the respondent, I am satisfied that this third stage of the test is met.
[77] Through section 9, the Squamish have sought to balance the potential rights of persons with no Squamish blood against the Squamish tradition and the need to preserve the unique Squamish culture and identity. A person who benefits from this status would be granted the right to live on reserve land and be able to inherit. However, the individual would have no ability to pass on membership to his or her own children.
[78] The effect of this measure is to make provision for persons adopted by Squamish parents without unduly stretching the Squamish traditions.
[79] It is true that paragraph 9(a) of the Membership Code does not recognize that all adopted children are entitled to acquire membership in the Squamish Nation. The only adopted children who can acquire such membership are children adopted before the age of eighteen by two Squamish parents. Even if an adopted child actually meets the requirement for acquired membership, his status is not acquired automatically. The Membership Committee retains the ability to review the application and to ensure that there is “sufficient cultural connection to extend to the child” (Affidavit of Juliette Marlene Baker at para. 39).
[80] The rationale for such requirements has been satisfactorily explained by the respondent and appears to be reasonable in the circumstances. According to the Affidavit of Juliette Marlene Baker, this was the extent to which the Membership Committee was willing to compromise as far as adopted children were concerned. It was of the opinion that this provision would strike a balance between recognizing the social reality that is adoption, while maintaining Squamish culture and identity. With respect to the adopted child of one Squamish person, it was felt that “the cultural connection would be too remote to overcome [Squamish] laws and traditions concerning a bloodline connection” (Affidavit Juliette Marlene Baker at para. 40). Allowing an adopted child with only one single Squamish parent would stretch Squamish traditions and unreasonably open membership to non-Squamish people.
[81] Furthermore, it was decided that an age limit should be imposed to adopted children who wished to obtain acquired membership. The Squamish Nation decided that only children under the age of eighteen were to be eligible to apply for membership. The Membership Committee was of the view that in order to have a sufficient cultural tie to the Squamish to overcome the lack of a bloodline connection, the child should not only have to be adopted by two Squamish members but should also be raised in the Squamish community.
[82] I do not believe the Court should second guess the Committee, considering that the provisions of the Membership Code were duly adopted after being discussed and agreed upon by the members of the Squamish Nation.
[83] Moreover, in finding here that the impugned provisions are justified under section 1, I do not discard the possibility that in another case, based on a differently constituted evidentiary record, another judge may have come to a different conclusion. This only shows that judicial review applications are perhaps not the best vehicle for resolving complex constitutional issues involving alleged discriminatory actions involving members of First Nations.
V. Aboriginal rights issues
[84] I note that “aboriginal rights” issues under subsection 35(1) of the Constitution Act, 1982, require complete evidentiary records that are consistent with an action for declaration of aboriginal rights. The Court makes no findings here on the validity of the provisions of the Indian Act dealing with band membership and whether they are inconsistent with section 35 of the Constitution Act, 1982. The Court also makes no general finding on the extent to which the Aboriginal community can control band membership. These complex issues were examined at length in Sawridge Band v. Canada (T.D.), 1996 1 F.C. 3 (F.C.T.D.), which was later reversed by the Federal Court of Appeal, [1997] 3 C.F. 580, on the grounds that there was a reasonable apprehension of bias on the part of the trial judge. These matters remain to be determined at the new trial, now before the Court. I therefore make no comment on these issues.
[85] That being said, in view of the conclusion I have reached above, it is not necessary that I decide in this case whether the respondent’s right to control membership is an “aboriginal right” within the meaning of subsection 35(1) of the Constitution Act, 1982, or alternatively, an “other right” as contemplated by section 25 of the Charter, that cannot be abrogated or derogated from by subsection 15(1) of the Charter.
VI. Conclusion
[86] For the reasons stated above, I conclude that the present judicial review application should be dismissed with costs payable to the respondent.
ORDER
THIS COURT ORDERS that the application for judicial review made by the applicants be dismissed with costs payable to the respondent.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1509-04
STYLE OF CAUSE: Alice Maxine Jaime Grismer et al. v. Squamish Indian Band A.K.A. Squamish Nation Council
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 6 and 7, 2006
REASONS FOR ORDER: MARTINEAU J.
AND ORDER
APPEARANCES:
|
Ms. Sharon McIvor
|
|
|
Mr. John Rich Mr. Matthew Kirchner
|
SOLICITORS OF RECORD:
|
Ms. Sharon McIvor Barrister and Solicitor Merritt, British Columbia
|
|
|
Ratcliff and Company Vancouver, British Columbia |