Digests

Shubenacadie Indian Band v. Canada (Human Rights Commission)

A-850-97

Isaac J.A.

24/5/00

24 pp.

Appeal from order ([1998] 2 F.C. 198) dismissing application for judicial review of Canadian Human Rights Tribunal's decision refusal to include non-Indian spouses in social assistance payments discrimination on grounds of race, marital status contrary to Canadian Human Rights Act, s. 5 --Appellant Council contracted with Department of Indian Affairs and Northern Development (DIAND) to deliver social assistance programmes under Master Funding Agreements--Answerable to Minister of Indian Affairs and Northern Development, in turn answerable to Parliament--Parliament enacted Canada Assistance Plan, s. 11(2) of which authorizing Ministers, with approval of Governor in Council to enter into agreements with province to extend provincial welfare payments to Indians ordinarily resident on reserves--S. 13 providing where no such agreement in effect, province not required to provide, pursuant to general welfare agreement between Minister and province under Part I, social assistance to Indians ordinarily resident on reserves--Nova Scotia not entering into any agreements--Parliament not enacting any other legislation to provide expressly for social assistance to Indians, families ordinarily resident on reserves--But since 1964, Treasury Board policy authorizing DIAND to provide social assistance to Indians as expressed in Background of Development of Social Assistance Program as part of general responsibility to Indians under Constitution Act, 1867, s. 91--Social assistance program described therein having application only to person residing on Indian reserves--Intended primarily for benefit of Indian people, families, including dependants --Each of applicants for social assistance herein (individual respondents) status Indian, member of Band--Received benefits for themselves, children, but denied benefits for non-Indian spouses who resided with them on reserve--Guidelines not requiring dependants be registered Indians--Appeal dismissed--(1) Appellant asserting Band government unique right pertaining only to Aboriginal people and normal notions of equality must be adjusted to protect Band's right to govern; to extent Canadian Human Rights Act (CHRA) not doing so, inconsistent with Charter s. 15 as interpreted through s. 25--Charter, s. 15 guaranteeing equality before, under law; s. 25 providing guarantees under Charter shall not be construed so as to abrogate, derogate from Aboriginal rights--Argument devoid of merit--(i) S. 25 shield protecting rights mentioned therein from being adversely affected by other Charter rights--Can only be invoked as defence if appellant's conduct found to violate Charter, s. 15(1)--Not case herein--(ii) Respondents complaining refusal to pay social assistance contravention of CHRA, s. 5--Since not alleging violation of Charter, s. 15, s. 25 not applicable--(iii) Appellant not establishing by evidence unique right asserting and which say included in s. 25--Evidence disclosing that under Master Funding Agreement appellant accepting obligation to distribute eleemosynary payments from Government of Canada in accordance with terms of Agreement and Guidelines--Obligation could not by mere effluxion of time have hardened into constitutional right protected by s. 25--(2) Allegation band engaging in affirmative action as provided by Charter, s. 15(2) devoid of merit--Issue assuming finding of s. 15(1) violation--No such violation alleged or found--(3) Tribunal having authority under CHRA, s. 2 to make order--Appellant contending Tribunal without jurisdiction to make order made because social assistance within provincial legislative authority under Constitution Act, 1867, s. 92(13), (16); consequently Parliament's legislative authority not extending to embrace it, CHRA, s. 2 not applicable; and since social assistance to non-Indian residents on reserve within provincial authority, Parliament having no constitutional authority to use spending power to provide social assistance to non-Indians living on reserve--Tribunal had authority to hear, dispose of complaints under CHRA, s. 5 on basis of authority given to Parliament in s. 91(24) (Parliament's exclusive jurisdiction over Indians, lands reserved for Indians)--Clear from Background of Development of the Social Assistance Program Government of Canada through Treasury Board Ministers, decided in 1964 to provide social assistance to Indians living on reserve and to families in discharge of constitutional responsibilities--Programme designed to enhance status of Indian people, families--On authority of relevant Treasury Board Minute, DIAND entered into Master Funding Agreements, prepared Agreements governing distribution of social assistance benefits funded wholly by Government of Canada--Refusal to pay benefits to Indian applicants in respect of non-Indian spouses cannot transform programme designed to enhance status of Indian peoples (matter within constitutional competence of Parliament) into matter within provincial competence, simply because non-Indian spouses involved--Programme designed for benefit of Indians--Only Indians who are members of Band, normally resident on reserve entitled to apply for benefits for themselves, dependants who must also normally reside on reserve--Programme designed to promote Indianness, limited territorially to reserve, constitutionally supportable under Constitution Act, 1867, s. 91(24) as being programme relating to Indians, lands reserved for Indians--Canada Assistance Plan, R.S.C., 1985, c. C-1, s. 11(2)--Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 5--Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15, 25.