Supreme Court of Canada, July 21, 2011

Supreme Court of Canada decision on the constitutionality of the exclusivity of Métis membership pursuant to the Métis Settlements Act

The Supreme Court of Canada held that sections 75 and 90 of the Métis Settlements Act, RSA 2000, c M-14 (“MSA”), providing that Métis settlement members who voluntarily register as Indians under the Indian Act, RSC 1985, c I-5 are automatically disqualified from being Métis settlement members, do not violate the equality rights guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), because the MSA is an ameliorative program pursuant to section 15(2) of the Charter. Ameliorative programs permit the government to provide benefits to a specific, disadvantaged group without having to confer the same benefits to all.

The Supreme Court’s decision in this case contains language that is strongly supportive of the recognition of the Métis as a unique and distinct people, and of the importance of Métis-specific legislation allowing the Métis a role in defining their own communities.

The Facts of the Case:

The case arose from a challenge brought by individuals whose membership in the Peavine Métis Settlement was terminated pursuant to section 90(1)(a) of the MSA, which calls for the removal of Métis settlement members who voluntarily register as Indians under the Indian Act. Subject to certain exceptions, section 75 of the MSA prohibits individuals with Indian status from obtaining Métis settlement membership. Their evidence was that they voluntarily registered as Indians under the Indian Act to obtain medical benefits available to status Indians, but not to Métis settlement members.

The Chambers Judge denied the respondents’ request for a declaration that sections 75 and 90(1)(a) of the MSA breached sections 2(d), 7, and/or 15(1) of the Charter. The Alberta Court of Appeal allowed the appeal, and granted a declaration of constitutional invalidity of sections 75 and 90 of the MSA on the basis of their violation of the equality rights guaranteed by section 15(1) of the Charter, and directed the Registrar to restore the respondents’ names to the Peavine Métis Settlement membership list.

The Supreme Court’s Ruling:

The Supreme Court dismissed the section 15 Charter claim on the basis that the MSA is an ameliorative program protected by section 15 (2) of the Charter. Ameliorative programs, by their nature, confer benefits on one group that are not conferred on others. Section 15(2) of the Charter permits governments to assist one group without being paralyzed by the necessity to assist all.

The Supreme Court noted that section 35 of the Constitution Act, 1982 recognizes three unique and distinct groups of Aboriginal peoples — Indians, Métis and Inuit. Further, the Supreme Court found the negotiations between the Alberta government and the Métis for the protection and enhancement of Métis culture and identity, distinct from Indian culture and identity, had resulted in the enactment of the MSA. These negotiations were found by the Court to be an acknowledgement by the government that the Métis are a distinct rightsholding group. The Court, therefore, found that consistent with the government and Métis’ desire to preserve Métis culture and identity, the MSA limits the scope for status Indians to be recognized as members of settlement communities.

Section 15 of the Charter protects against discriminatory laws and government actions. Its goal is to enhance substantive equality, and it does so in two ways. First, section 15(1) is aimed at preventing discrimination on an enumerated or analogous ground. Second, section 15(2) is aimed at permitting governments through ameliorative programs to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. The purpose of section 15(2) is to save ameliorative programs from the charge of “reverse discrimination”.

The first step is to determine whether the law makes an adverse distinction against the claimant group on the basis of one of the grounds set out in section 15(1) or an analogous ground. The Supreme Court assumed that the distinction between the Métis and status Indians in the MSA is a distinction on an enumerated or analogous ground on the basis of the Chambers Judge’s determination.

The second step is to determine whether the distinction is saved by section 15(2). Under this second step, the government must show, on the evidence, the following:

a. That the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality;

b. That there is a correlation between the program and the disadvantage suffered by the target group; and

c. That rational means are being used to pursue the ameliorative goal.

If these conditions are met, section 15(2) protects all distinctions drawn on enumerated or analogous grounds that serve and are necessary to the ameliorative purpose, to the extent justified by the object of the ameliorative program.

In applying the second step, the Supreme Court held that the MSA is a genuinely ameliorative program. Unlike many ameliorative programs, its object is not the direct conferral of benefits on individuals within a particular group, but the enhancement and preservation of the identity, culture and self-governance of the Métis through the establishment of a Métis land base. Excluding Métis who are also status Indians from formal membership in Métis settlements serves these objects, the Court ruled.

The Supreme Court found that the record did not provide them with an adequate basis to assess the section 2(d) Charter claim, and found that the section 7 Charter claim failed because any impact on liberty was not shown at trial to be contrary to the principles of fundamental justice.

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