BETWEEN:
JAMIE GALLANT, STEPHANIE STANGER
and SHELLEY LEWIS
and
THE ATTORNEY GENERAL OF CANADA and
THE MI’KMAQ CONFEDERACY OF PRINCE EDWARD ISLAND
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of the decision rendered on or about April 1, 2005 by Human Resources and Skills Development Canada (HRSDC) to enter into a single Aboriginal Human Resources Development Agreement (the “Agreement”) on Prince Edward Island with the Mi’kmaq Confederacy of Prince Edward Island (the “Confederacy”).
I. Facts
[2] On April 1, 1999, HRSDC announced a program to increase employment opportunities to Aboriginal people. This program was called Aboriginal Human Resources Development Strategy (the “Strategy”). Phase I of the Strategy ran from April 1, 1999 to March 31, 2005. As part of the Strategy, HRSDC entered into Aboriginal Human Resources Development Agreements (“AHRDAs”) with Aboriginal organizations across Canada.
[3] Three such agreements were entered into with Aboriginal organizations on Prince Edward Island (P.E.I.) during Phase I. The organizations were the Abegweit First Nation, the Lennox Island First Nation, and the Native Council of P.E.I. (the “Native Council”). The Abegweit First Nation and the Lennox Island First Nation are the only two Indian bands on P.E.I. Both nations are Mi’kmaq. The Native Council is a non-profit organization that advocates for Aboriginal persons living off-reserve in P.E.I.
[4] The applicants are all members of the Native Council and the Native Council has provided them with assistance of various kinds and access to various government programs. All of the applicants live off-reserve and have limited or no relationship with the bands on P.E.I. Jamie Gallant, the Chief and President of the Council, is a non-status Aboriginal person. Stephanie Stanger, is a status Aboriginal person registered with an out-of-province band. Shelley Lewis is registered with the Abegweit band on P.E.I. but lives off-reserve.
[5] Phase II of the Strategy commenced April 1, 2005. HRSDC decided to change the number of AHRDAs it was willing to enter into in various regions and, in particular, it decided to move to having only one AHRDA on P.E.I. In Phase II of the Strategy, the only AHRDA was made with the Confederacy. The Confederacy was incorporated in 2002 by the Lennox Island First Nation and the Abegweit First Nation. The Confederacy was initially created to serve as a tribal council but the Confederacy now describes itself as a multi-functioning organization providing service to all Aboriginal people in P.E.I. Its Board of Directors consists of the full councils of the Lennox Island band and the Abegweit band.
II. The decision under review
[6] The possibility of consolidating the three AHRDAs into one for Phase II of the Strategy was discussed as early as 2003. According to HRSDC, both the Native Council and the Confederacy were aware of this by November 2003. The decision to consolidate the three AHRDAs was made in January 2005.
[7] HRSDC did not institute a request for proposal process but rather made arrangements to discuss the decision to consolidate with each of the AHRDA holders separately. Anticipating the consolidation, the Confederacy decided to submit an unsolicited proposal to HRSDC to become the single AHRDA holder on P.E.I. HRSDC informed the Native Council of the Confederacy’s proposal in early 2005.
[8] HRSDC met with the Native Council on a number of occasions in early 2005. On each occasion the Native Council expressed the view that the Confederacy could not represent the interests of off-reserve Aboriginal people and that there should be two AHRDAs in P.E.I: one for on-reserve Aboriginal people and one for off-reserve Aboriginal people. The Native Council also proposed as an alternative to two AHRDAs that the Confederacy be allowed to have a sole AHRDA but the urban/off-reserve component of the Agreement be managed by the Native Council in a sub-agreement.
[9] After considering the Native Council’s concerns, HRSDC decided to stick with the plan to consolidate the three AHRDAs into one. HRSDC was unwilling to consider a sub-agreement as proposed by the Native Council because of prior negative experience HRSDC had had with them in others provinces. On February 11, 2005, HRSDC informed the Native Council of its decision and suggested to the Native Council that it submit its own proposal to be the sole AHRDA holder for P.E.I. The Native Council declined to do so stating that it was not its mandate to represent on-reserve Aboriginal people.
[10] To protest this decision, the members of the Native Council took a number of actions. They wrote letters to directors in HRSDC, held a public meeting to discuss the subject, and staged a public demonstration outside HRSDC’s offices. This reaction from the Native Council was not a surprise to HRSDC. Department documents dating back to 2004 indicate that HRSDC anticipated that it could be difficult to consolidate the AHRDAs, as “bringing the two first nation agreements and the non status group together under one agreement will be tough to sell when these two groups are not being brought together under one agreement, else where in the Maritimes or for that matter Canada” (material disclosed under Rule 317 of the Federal Courts Rules, SOR/98-106 (the Rules), pages 18 and 19 of volume 1 (of 3) of the Applicants’ Record).
[11] In February and March 2005, HRSDC continued to meet with the Native Council and also arranged a meeting where the Confederacy presented its proposal to the Native Council.
[12] On or about April 1, 2005, HRSDC entered an AHRDA with the Confederacy making the Confederacy the sole AHRDA holder on P.E.I (the decision). It is this decision which is under review in this application.
III. Issues
A. Preliminary issue
(1) Should certain paragraphs of the affidavits of Shelly Lewis, Stephanie Stanger,
Sheila Chaisson and Jamie Gallant be struck?
B. Main issues
(1) Did HRSDC’s decision to enter into a sole AHRDA with the Confederacy result in
discrimination in violation of the applicants’ individual equality rights protected
under section 15 of the Canadian Charter of Rights and Freedoms (the Charter)?
(2) If it did, was the decision justifiable under section 1 of the Charter?
(3) Did HRSDC’s involvement in the decision breach natural justice and fail to provide
procedural fairness through its conduct?
IV. Analysis
A. Preliminary issue
[13] The Attorney General submits that portions of the affidavits of Shelley Lewis, Stephanie Stanger, Sheila Chaisson, and Jamie Gallant are not in compliance with Rule 81 because they are not confined to facts in the personal knowledge of the deponent. The Attorney General submits that the following paragraphs should be struck from the affidavits:
(1) Affidavit of Shelley Lewis: paragraphs 4, 8-10;
(2) Affidavit of Stephanie Stanger: paragraphs 7, 15-16;
(3) Affidavit of Sheila Maureen Chaisson: paragraphs 10-11; and
(4) Affidavit of Jamie Gallant: paragraphs 34, 47-49, 50-52.
[14] Subsection 81(1) of the Rules reads:
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81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefore, may be included. |
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
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(1) Shelley Lewis’ affidavit
[15] Paragraph 4 – Shelley Lewis alleges that she knew that persons living on reserve received Christmas bonuses. It is clear from the cross-examination that this was not within her personal knowledge but rather she had heard about this from other people.
[16] Paragraph 8 – Shelley Lewis alleges that the process of applying for AHRDA funding through the Confederacy will be difficult and complicated. This is clearly not within her personal knowledge and during her cross-examination she admitted that she has never applied for funding through the Confederacy.
[17] Paragraph 9 – Shelley Lewis opines given the mandate of the Confederacy the likely result of the Confederacy having the sole AHRDA is that off-reserve Aboriginal persons would be discriminated against. The Confederacy’s mandate is not within her personal knowledge. In her cross-examination she admitted that she was told what the Confederacy’s mandate is by Jamie Gallant.
[18] Paragraph 10 – Shelley Lewis states that she was only made aware of HRSDC’s decision to adopt a “single-window” approach through the efforts of the Native Council. I see no problem with this statement.
[19] I will therefore strike paragraphs 4, 8, and 9 from Shelley Lewis’ affidavit.
(2) Stephanie Stanger’s affidavit
[20] Paragraph 7 – Stephanie Stanger claims that she does not fit within the Confederacy’s mandate since she is not Mi’kmaq and not from one of the two bands on P.E.I. As previously noted, comments about the mandate of the Confederacy can be struck on the basis that it is not within the affiant’s personal knowledge since the affiant did not bring specific evidence to show that this information is part of her personal knowledge.
[21] Paragraph 15 – Stephanie Stanger claims that since the decision has been made to grant a sole AHRDA to the Confederacy she has been contacted by several students who receive AHRDA funding through the Council and states that they all expressed concern about whether the Confederacy would provide equitable access to funding. Accepting as evidence what the students said is not acceptable.
[22] Paragraph 16 – Stephanie Stanger states that she is concerned that she will receive less equitable access to AHDRA funding under the new system because she believes, based on the “Important Public Notice” sent out by the Confederacy that the Confederacy will try to secure more funding for the on-reserve Aboriginal community leaving less for the off-reserve community. The “Important Public Notice” stated that the “leadership of both First Nation communities feels that by having the AHRDA housed out of the Mi’kmaq Confederacy, there will be more employment and training opportunities created for all Lennox Island and Abegweit community members.”
[23] It is clear from the cross-examination that Stephanie Stanger holds as a personal belief that the Confederacy intends to try to secure more of the funding for the on-reserve Aboriginal communities and that she does not express this as a fact. The cross-examination also clears up the nature of Stanger’s concern about the “Important Public Notice”. She doesn’t believe that the Confederacy will represent her because she feels that the use of the term First Nation instead of Aboriginal in the Notice reflects the fact that the Confederacy is more focused on the interests of the First Nations persons on P.E.I. than on Aboriginal persons.
[24] I will therefore strike paragraphs 7 and 15 from Stephanie Stanger’s affidavit and leave paragraph 16, giving this evidence limited weight.
(3) Sheila Maureen Chaisson’s affidavit
[25] Paragraph 10 – Sheila Maureen Chaisson states that she will not apply for AHRDA funding through the Confederacy because her past experiences with the administration of the Lennox Island band have led her to believe that her application would not receive due consideration. This paragraph is a statement about the affiant’s feelings and what she will do in the future. I see no real need to strike this paragraph. However, limited weight is given to this evidence.
[26] Paragraph 11 – Sheila Maureen Chaisson states the only reason that the Confederacy would pursue the exclusive right to administer the AHRDA funding would be to ensure that government funding remains in its constituents’ community. This is clearly opinion and will be struck.
(4) Jamie Gallant’s affidavit
[27] Paragraph 34 – Jamie Gallant refers to the “Important Public Notice” distributed by the Confederacy. She states that if the amount of AHRDA funding is the same and the Lennox Island and Abegweit community members will receive more funding then it must mean that the off-reserve community members will receive less funding. This is opinion and will be struck.
[28] Paragraph 47 – Jamie Gallant states that by having only one AHRDA on P.E.I. there is a risk of discrimination. This is also opinion and will be struck.
[29] Paragraph 48 – Jamie Gallant states that P.E.I. is the only Atlantic province with a single AHRDA and without an AHRDA with an off-reserve Aboriginal organization. These facts could be within her personal knowledge as the President of an Aboriginal organization which had an AHRDA. I do not see any need to strike this paragraph.
[30] Paragraph 49 – Jamie Gallant states that she has experienced discrimination as an off-reserve non-status Aboriginal person and claims that in her experience non-status Aboriginal persons receive less funding than on-reserve and status Aboriginal persons since priority is given to status Aboriginal persons living on reserve. She notes that she knows this personally as well as from her involvement with the Native Council. Since Gallant works as the President of an organization which represents off-reserve and non-status Aboriginal persons it is not surprising that it would be within her personal knowledge that non-status Aboriginal persons receive less government support than status Aboriginal persons.
[31] Paragraph 50 – Jamie Gallant states that she would not feel comfortable applying to the Confederacy for AHRDA funding. I do not think it is necessary to strike this paragraph, but this evidence is far from being determinative in this matter.
[32] Paragraph 51 – Jamie Gallant states that she believes that off-reserve Aboriginal people will not be comfortable approaching an organization representing on-reserve Aboriginal people. She also states that she is concerned that the Confederacy lacks the resolve and resources to adequately serve off-reserve Aboriginal persons. This paragraph should be struck as neither statement involves subjects she personally has knowledge of.
[33] Paragraph 52 – Jamie Gallant states that she is concerned that this is a test case to see if the “single window” approach should be used in other provinces. HRSDC’s policy is not within her personal knowledge.
[34] I will therefore strike paragraphs 34, 47, 51 and 52 and allow paragraphs 48, 49, and 50.
B. Main issues
(1) Discrimination
[35] The parties agree that the applicable law was laid out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at paragraph 88 [Law]. A section 15 analysis consists of three inquiries:
(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;
(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
[36] The Supreme Court of Canada emphasized in Law and Lovelace v. Ontario, [2000] 1 S.C.R. 950 [Lovelace], that a section 15 analysis is a comparative inquiry. Therefore, selecting the correct comparison group is a crucial part of a section 15 analysis. In Lovelace, at paragraph 62, the Supreme Court of Canada wrote that “locating the relevant comparison groups requires an examination of the subject-matter of the law, program or activity and its effects, as well as a full appreciation of the context.”
[37] The applicants submit that the appropriate comparator group is members of the on-reserve Aboriginal community. The Attorney General submits that the applicants did not state what the claimant group they are proposing is, but it is clear to me from the applicants’ submission that the claimant group is members of the off-reserve Aboriginal community in P.E.I. and, therefore, the appropriate comparison is off-reserve Aboriginal persons and on-reserve Aboriginal persons.
[38] The Attorney General submits that the relevant claimant group is Aboriginal persons residing on P.E.I. who applied for, or were eligible to apply for, access to labour marker programming through an organization that had an AHRDA prior to April 2005. The Attorney General appears to be proposing that the appropriate comparator group is Aboriginal persons residing on P.E.I. who applied for, or were eligible to apply for, access to labour marker programming under the current AHRDA.
[39] I cannot accept the Attorney General’s proposed groups as those groups do not adequately reflect the nature of the discrimination claim brought forward by the applicants which alleges that the applicants face discrimination as Aboriginal persons living off-reserve. In Law, at paragraph 57, and in Lovelace, at paragraph 62, the Supreme Court of Canada held that generally the claimant chose the relevant comparator. As the applicants point out, the comparator group they have put forward is the same as that used in Misquadis et al. v. Attorney General of Canada , [2003] 2 F.C. 350, aff’d [2004] 2 F.C.R. 108 [Misquadis] (this case is also known as Ardoch Algonquin First Nation v. Canada (Attorney General)), a case which has many similarities with the present one.
[40] Misquadis was a judicial review of a decision by Human Resources Development Canada (HRDC) not to enter into an AHRDA with Aboriginal organizations mandated by the applicants’ communities to represent them. The applicants in that case claimed that HRDC discriminated against them because of its decision to enter into AHRDAs only with the provincial or regional affiliates the Assembly of First Nations, the Métis National Council and the Inuit Tapirisat of Canada. My colleague Justice Lemieux held that the section 15 equality rights of the applicants had been violated and that the discrimination was not justified under section 1. His finding was upheld by the Federal Court of Appeal.
[41] The Native Council purports to represent off-reserve Aboriginal people. In cross-examination Jamie Gallant, the Chief and President of the Native Council of P.E.I., admitted that one of the objectives of the Native Council is to provide leadership and assistance to all Aboriginal populations but another objective is to work with all levels of government to improve the social, economic, and educational opportunities for off-reserve Aboriginal people on P.E.I. Just because the objectives of the Native Council include empowering and supporting the Aboriginal community in general, the fact remains that the Native Council’s main focus is supporting and assisting the off-reserve Aboriginal population.
[42] Therefore the claimant group in this case is Aboriginal persons living off-reserve in P.E.I. and the comparator group is on-reserve Aboriginal persons in P.E.I.
(a) Whether evidence of differential treatment
[43] The first inquiry in a section 15 analysis is whether the program imposes differential treatment between the claimant and others, in purpose or effect.
[44] The applicants submit that there is differential treatment as between members of the off-reserve Aboriginal community and the on-reserve Aboriginal community since the decision gives the on-reserve population the opportunity to exercise “community control” over the AHRDA holder through their ability to elect their councils and chiefs who then control the AHRDA holder, the Confederacy.
[45] By contrast, the off-reserve community has no way to contribute to the composition of the Board of the AHRDA holder, except those members of the off-reserve community who have voting rights in Lennox Island band elections. The off-reserve members of the Abegweit First Nation band cannot vote in band elections. None of the applicants is a member of the Lennox Island band.
[46] The Attorney General submits that the applicants have not demonstrated that they suffered any differential treatment vis-à-vis the comparator group on the basis of a personal characteristic. The Attorney General points out that there is no evidence that any of the applicants were deprived access to services under the current AHRDA nor is there any evidence that any of the applicants have been excluded from the design of the programming under that AHRDA.
[47] However, by giving the sole AHRDA to the Confederacy, an Aboriginal organization whose Board is made up of the band councils of the two First Nations on P.E.I., I am of the view that the applicants and other off-reserve Aboriginal persons in P.E.I. do not enjoy the benefit of other Aboriginal persons in P.E.I. who have some degree of control over the organization which holds the AHRDA since they can vote for the Board. This situation is similar to that in Misquadis. In that case, Justice Lemieux held that:
[111] The first stage of the discrimination inquiry under section 15 of the Charter asks whether the program makes a distinction that denies equal benefit, imposes an unequal burden or put in other words, imposes unequal treatment between the applicants and those in the comparator group.
[112] The benefit denied or unequal treatment imposed claimed by the applicants is the inability under the AHRDS for the communities they live in to do what First Nation members living in on-reserve communities can do for their members, both on and off-reserve: decide how best to devise and implement training programs, decide which type of program is needed to serve Aboriginal peoples in their communities, allocate funding for this purpose and insure service providers function appropriately in a context of accountability.
[113] Devolving decision-making for labour market programming to Aboriginal communities was the premise upon which Pathways, the New Relationship and AHRDS were built and the reason is apparent and is acknowledged by HRDC. Experience has shown that labour market programming to serve Aboriginal peoples will not work unless decisions are made by those on the ground.
[114] I accept the evidence of David Hallman, David McCulloch and Robert Hawson, on behalf of HRDC, AHRDS did not envisage every Aboriginal community would have an AHRDAs. Efficiencies and economics of scale are relevant.
[115] I do not, however, accept their evidence critical mass was an issue relevant to the communities the applicants live in.
[116] AHRDS draws a distinction between the applicants' communities and those of the comparator group. First Nation band communities enjoy the benefits of local community control while the applicants' communities do not. The distinction is not overcome by the urban component of AHRDA whose purpose is different: to ensure access in urban and rural communities to supplement the primary responsibility of AHRDS holders (First Nation bands) to serve their members in those communities. As counsel for Canada argued this is not a case where the applicants allege they were denied funding when they applied for it. The applicants have met the first stage.
[48] The Attorney General submits that that there is no evidence that any of the applicants were deprived access to services under the current AHRDAs. I would have no problem concluding based on the evidence that the decision to award the sole AHRDA to the Confederacy has not had the effect of preventing off-reserve Aboriginal people from accessing AHRDA funding; however, this is not the claim that the applicants are bringing. Like the claim in Misquadis, the discrimination claim here is that there is differential treatment between the two groups since the decision gives the reserve-based population the opportunity to exercise “community-control” over the AHRDA holder and the means to ensure accountability for the execution of the Strategy through their ability to vote for or against their councils and chiefs who control the AHRDA holder.
[49] The Statistics Canada population data for 2001 indicates that there are 1345 self-identified Aboriginal persons on P.E.I. and 845 of them are registered Indians. It also indicates that 735 people who self-identify as Aboriginal live in Charlottetown. Even taking into account that some urban, off-reserve Aboriginal persons do have the ability to exercise community control over the AHRDA holder because they are members of the Lennox Island First Nation, the statistics indicate that a substantial portion of the Aboriginal population on P.E.I. is similarly situated to the applicants and have no community control over the AHRDA holder.
[50] It is clear that officials in HRSDC were aware of this. On March 7, 2005, John Kozij, Director of Policy, HRSDC, in an e-mail (document disclosed under Rule 317, page 66 of volume 1 (of 3) of the Applicants’ Record) to a number of his colleagues, including William Hayward, wrote:
Given the Misquadis decision and the high proportion of non-status people in the off-reserve setting (I count over 50% in the off-reserve setting), the consolidation of the 3 AHRDAs into one should provide for more than just Lennox and Abegweit representation on the new single AHRDA board. Will the board also reflect native council representation?
[51] An e-mail from Gerald Gosselin, Program Manager, Aboriginal Affairs, HRSDC, to department colleagues, offers further indication that HRSDC was aware that the consolidation of three AHRDAs into one and arranging the sole AHRDA with an organization that did not represent the off-reserve community would be difficult given Misquadis. Gosselin writes that “the issue for us is Misquadis hanging over our heads” and notes that HRSDC has a strong case to move forward with the plan to consolidate and leave the Native Council out of the new AHRDA since the Native Council is weak and “can not provide strong support in the over-all AHRDS agenda.”
[52] In my view, the fact that the Confederacy is composed of the entire band councils of the two First Nation bands on P.E.I. is sufficient to indicate that the Confederacy does not adequately represent the needs and interests of off-reserve Aboriginal people. The Confederacy submits that while it was first established as a tribal council that it is now a multi-functioning organization providing service to all Aboriginal people in P.E.I. Providing service to Aboriginal persons is not exactly the same as representing off-reserve Aboriginal persons. If the Confederacy really strove to represent all Aboriginal persons on P.E.I. than the structure of its Board would be changed to reflect this fact.
[53] In my opinion, based on the evidence before the Court, the decision created differential treatment and, moreover, officials within HRSDC knew that this would be the effect of the decision.
(b) Whether enumerated or analogous ground
[54] The applicants submit that the differential treatment is based on the analogous ground of aboriginality-residence and that off-reserve residency has been accepted as an analogous ground by the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere], as well as by Justice Lemieux in Misquadis.
[55] In Corbiere, at paragraph 62, Madam Justice L’Heureux-Dubé found that Aboriginal residency could be an analogous ground (Justice L’Heureux-Dubé wrote separate reasons but the majority agreed with her reasoning on this issue):
Here, several factors lead to the conclusion that recognizing off-reserve band member status as an analogous ground would accord with the purposes of s. 15(1). From the perspective of off-reserve band members, the choice of whether to live on- or off-reserve, if it is available to them, is an important one to their identity and personhood, and is therefore fundamental. It involves choosing whether to live with other members of the band to which they belong, or apart from them. It relates to a community and land that have particular social and cultural significance to many or most band members. Also critical is the fact that as discussed below during the third stage of analysis, band members living off-reserve have generally experienced disadvantage, stereotyping, and prejudice, and form part of a “discrete and insular minority” defined by race and place of residence. In addition, because of the lack of opportunities and housing on many reserves, and the fact that the Indian Act’s rules formerly removed band membership from various categories of band members, residence off the reserve has often been forced upon them, or constitutes a choice made reluctantly or at high personal cost. For these reasons, the second stage of analysis has been satisfied, and “off-reserve band member status” is an analogous ground. It will hereafter be recognized as an analogous ground in any future case involving this combination of traits. [. . .]
[56] The Attorney General submitted a different comparator group than the applicants and, as a result, the Attorney General’s submission on this issue cannot be used in an analysis based with off-reserve Aboriginal people as the comparator group. The Attorney General briefly addresses Aboriginal residency as an analogous ground in its submissions and submits that Aboriginal residency should not be considered an analogous ground in this case because facts here are distinguishable from Corbiere. The Attorney General submits Corbiere dealt with off-reserve Aboriginal persons who could not vote in band elections.
[57] However, none of the applicants in this case can vote for either of the band councils on P.E.I. and as a result they have no way to influence the composition of the Board of the Confederacy. It is true that off-reserve members of the Lennox Island band would fall into a different category because that band allows off-reserve band members to vote; however, none of the applicants belong to the Lennox Island band and, as previously stated, the statistics indicate that a substantial portion of the Aboriginal population on P.E.I. is similarly situated to the applicants.
[58] Therefore, I see no reason to distinguish this case from Corbiere and I accept that Aboriginal residence is an analogous ground. I also accept that the differential treatment is based on Aboriginal residency.
(c) Whether program is discriminatory
[59] The third inquiry in a section 15 analysis is whether the law or decision in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. This inquiry involves a contextual analysis involving an analysis of the following four factors:
- pre-existing disadvantage;
- the correspondence, or lack thereof, between the ground on which the claim is based and the actual need, capacity, or circumstance of the claimant or other;
- the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society; and
- the nature and scope of the interest affected by the impugned government activity.
[60] The applicants refer to the cases of Corbiere, Lovelace and Misquadis for the proposition that off-reserve Aboriginal peoples are vulnerable, disadvantaged and vulnerable to stereotyping. The Attorney General submits that the first factor is neutral since both the comparator group and the claimant group suffer from a pre-existing disadvantage.
[61] In Corbiere, the Supreme Court recognized the vulnerability of off-reserve First Nations band members to unfair treatment on the basis of the group being stereotyped as “less Aboriginal” than band members living off-reserve. In Lovelace, the Supreme Court recognized that non-status First Nations persons could similarly be vulnerable to unfair treatment. Based on these two cases, I accept that non-status Aboriginal persons and off-reserve Aboriginal persons are vulnerable to unfair treatment while at the same time recalling, as Justice Lemieux did in Misquadis, at paragraph 122, that both band and non-band Aboriginal communities suffer from historical disadvantage and that it is not necessary to compare the two groups to see which is more disadvantaged or vulnerable.
[62] The second factor is whether there is a correspondence between the ground on which the claim is based and the actual need, capacity, or circumstances of the claimant. The applicants submit that the Strategy is a program that is supposed to be available to all Aboriginal persons and, yet, the off-reserve members of the Aboriginal community have no means by which to hold the Confederacy accountable. On this second factor, the Attorney General submits that the Court should consider the fact that the Confederacy is more representative of the Aboriginal community on P.E.I. than the Council and has a proven capability of providing the programming under the AHRDA.
[63] Since the claim is based on community control of the AHRDA holder and not based on access to AHRDA funding, the needs of the applicants to be considered at this stage is the need of the off-reserve community to have “community control” over the AHRDA holder. The applicants did not submit any specific evidence to prove that this is indeed a need of the off-reserve community, but the applicants point to Misquadis where Justice Lemieux held, at paragraph 132:
. . . The applicants do not have to show they are more disadvantaged than the reserve-based First Nation members. AHRDS is a universal program whose purpose is to provide enhanced employment opportunities for all Aboriginal peoples in Canada and the benefits of local community control do not differ whether a First Nation person lives on the reserve or not. [. . .]
And at paragraph 138:
They have been excluded and unjustifiably differentially treated by HRDC from the purpose and significant benefit of AHRDS, that which HRDC itself recognizes without which the program will fail, local control of programming and funding tailored to each community's different needs in the labour market.
[64] Indeed the Agreement signed between the Confederacy and HRSDC acknowledges that the program is intended to support the development and implementation by Aboriginal organizations of human resources development programs that are tailored to meet the needs of Aboriginal peoples. Therefore, I find that there is a correspondence between the claim of the applicants and the needs of the claimant group.
[65] There is no disagreement between the parties on the third factor. Both parties agree that the AHRDAs have an ameliorative purpose. The applicants emphasize that the Strategy is to help all Aboriginal people in P.E.I. and is not intended to be a program that bestows special benefits to one segment of the Aboriginal population.
[66] The fourth factor is the nature and scope of the interest affected by the impugned government activity. The applicants submit that by not allowing non-reserve people to have any control over the Board of the sole AHRDA holder this effectively amounts to “non-recognition” of them as off-reserve Aboriginal people and the community they have off a reserve. The Attorney General submits that there is no evidence that the fact that HRSDC did not sign a separate AHRDA with the Native Council has affected the interests of any individual applicant.
[67] I agree that the applicants have not shown that their interests with regards to accessing funding have been affected by the decision; however, the decision has certainly affected the applicants’ ability to control and manage the funds. In Misquadis, Justice Lemieux held that:
[141] What HRDC failed to recognize are the applicants' urban and rural First Nation communities, that they function as a community in which First Nation members participate, have traditional forms of governance which tasks organizations to carry out programs they consider necessary to address the needs of the members of that community. HRDC does not acknowledge a Roger Misquadis, a Mona Perry, a Peter Ogden, with others, has built an Aboriginal community in the places they live in.
[68] Taking into account the four contextual factors discussed above, I find that the decision has an effect that is discriminatory within the meaning of the equality guarantee.
(2) Violation justification under section 1
[69] The applicants submit that the Attorney General bears the burden of satisfying the Court that the section 15 violation is saved by section 1 of the Charter. The applicants do not provide a section 1 analysis and simply submit that there were a number of alternatives before HRSDC which had a less discriminatory impact on the applicants.
[70] The Attorney General submits the first part of the section 1 test is met, namely that the government’s purpose is pressing and substantial enough to warrant overriding the Charter right. The Attorney General submits that the Federal Court in Misquadis held that the purpose of the Strategy met the pressing and substantial test of section 1. I see no reason to disturb this finding.
[71] As discussed in R. v. Sharpe, [2001] 1 S.C.R. 45, the second part of the section 1 test requires the government to prove that the means chosen are:
1) proportionate to the objective, in that the impugned governmental action is rationally connected to its objective;
2) that the means do not impair the Charter right any more than is necessary to accomplish the objective; and
3) that the benefits of the action that limits the Charter rights outweigh its delirious effects on the right.
[72] The Attorney General submits that the Strategy is rationally connected to the purpose of assisting Aboriginal people enter the labour market.
[73] The government action under review is clearly rationally connected to the objective of the Strategy since the decision to enter into an AHRDA is a direct part of implementing the Strategy. More specifically, I accept that HRSDC’s decision to choose to make the Confederacy the sole AHRDA is rationally connected to Strategy’s objective of providing effective labour market programming. Based on the evidence before the Court, the Native Council had problems meeting the requirements of the AHRDA when they had it in Phase I of the Strategy. On the other hand, HRSDC recognized that the Confederacy had the institutional capacity to deliver the programming effectively and, thereby, meet the needs of the Aboriginal clients and communities.
[74] It is on the second prong of the test – minimal impairment – that the decision fails.
[75] The Attorney General submits that the Strategy is minimally impairing since it still provides the Aboriginal community of P.E.I. access to government programs thorough a regional Aboriginal organization which represents all Aboriginal people on P.E.I. This submission does not adequately explain whether there were other means available to HRSDC to implement the Strategy in a way that did not violate the rights of the off-reserve Aboriginal people.
[76] The applicants put forward a number of alternatives to the decision. One of the alternatives was a proposal that a sub-agreement for the off-reserve population be arranged with the Native Council. This was dismissed by HRSDC because HRSDC had had a negative experience with sub-agreements in another province. Another alternative put forward by the applicants was that the Confederacy be required to include the Native Council on their Board. Both of these options would impair the section 15 rights of the applicants less than the decision taken by HRSDC. Either of these options also gives the off-reserve community some local control while at the same time not giving the Native Council complete responsibility for an AHRDA, something HRSDC does not want to do because of concerns that the Native Council does not have as much institutional capacity to manage an AHRDA.
[77] In conclusion, I find that the section 15 violation is not saved by section 1 because the means of implementing the Strategy are not minimally impairing.
(3) Procedural fairness
[78] The submission of the applicants raises basically two rights relating to procedural fairness: the right to be heard and the right to a decision.
[79] I must first point out that in this case, the fact that this is a decision made by a government Department rather than by an administrative tribunal (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 23), as well as the fact that the decision is a policy-based decision rather than one about an individual, suggest that the content of procedural fairness is less than it would be in other circumstances (see Chiau v. Canada (M.C.I.), [2000] F.C.J. No. 2043 (F.C.A.) (QL) at paragraph 43).
[80] The applicants submit that HRSDC should have held a public consultation before proceeding to make the decision to make the Confederacy the sole AHRDA holder. They also submit that HRSDC should have held a hearing for the applicants. Both of these suggest that the applicants believe that they have not had the opportunity to be heard.
[81] The evidence shows that HRSDC met with the Native Council on a number of occasions in early 2005 to discuss the plan to consolidate the three AHRDAs, to discuss the Confederacy’s proposal and to discuss the Native Council’s concerns about the proposal. It is true that HRSDC did not meet with any of the applicants except as representatives of the Native Council. Unfortunately, the applicants do not submit any case law which supports the idea that the right to be heard requires government Departments to consult with stakeholders before concluding partnership agreements with community organizations. I find that there is no duty to hold public consultation with stakeholders. Moreover, I find that the meetings which were held with the Native Council were sufficient to allow the applicants to be heard through the organization which they have chosen to represent them, the Native Council.
[82] The second area in which the applicants allege that the duty of procedural fairness has been breached is the duty to reasons. The applicants did not argue that written reasons should have been given but simply that reasons should have been disclosed for why HRSDC chose not to follow any of the alternative proposals put forward by the Native Council. Again, the applicants did not submit any jurisprudence to support the idea that the government is required to disclose reasons when it chose not to follow suggestions put forward by stakeholders in a government program. The applicants did not submit a formal proposal in the context of a call for proposals, they simply offered alternative suggestions to the proposal provided by the Confederacy. Given this factual context, I do not believe that the duty of procedural fairness required HRSDC to give reasons.
V. Conclusion
[83] For all the above reasons, I do not believe that HRSDC breached the duty of procedural fairness in the way it dealt with the applicants in the lead up to the signing of the AHRDA with the Confederacy. However, I find that HRSDC has breached the rights of the applicants under section 15 of the Charter and the Attorney General cannot show that the violation is justified under its section 1.
VI. The remedy
[84] In the circumstances, the appropriate remedy, much like in Misquadis, is to undo the AHRDA’s exclusion of the off-reserve Aboriginal community of P.E.I., which includes the applicants, by ordering its inclusion. HRSDC, as represented by the respondent, the Attorney General of Canada, shall consult with the Confederacy and with the representative organization(s) of the off-reserve Aboriginal people of P.E.I. about how best to fashion an AHRDA on P.E.I. so as to be inclusive of the off-reserve Aboriginal people on P.E.I.
[85] HRSDC shall implement, no later than twelve (12) months from the date of these Reasons for Judgment, the Strategy on P.E.I. in a manner that eliminates the exclusion and discrimination suffered by the off-reserve Aboriginal population on P.E.I. This shall be done by providing community control over an AHRDA to the off-reserve Aboriginal people of P.E.I.
[86] The current AHRDA between the Confederacy and HRSDC shall remain in operation while HRSDC consults with the Confederacy and the off-reserve Aboriginal people on P.E.I. and negotiates a new or an amended AHRDA in accordance with these Reasons for Judgment.
[87] For all these reasons, the judicial review application is allowed with costs.
Ottawa, Ontario
January 3, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-618-05
STYLE OF CAUSE: JAMIE GALLANT, STEPHANIE STANGER and SHELLEY LEWIS v. THE ATTORNEY GENERAL OF CANADA and THE MI’KMAQ CONFEDERACY OF PRINCE EDWARD ISLAND
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 5, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: January 3, 2007
APPEARANCES:
Mr. D. Bruce Clarke
Mr. Brian K. Awad FOR THE APPLICANTS
Mr. Jonathan D. N. Tarlton FOR THE RESPONDENT, THE ATTORNEY GENERAL OF CANADA
Mr. Donald K. MacKenzie FOR THE RESPONDENT, THE MI’KMAQ CONFEDERACY OF PRINCE EDWARD ISLAND
SOLICITORS OF RECORD:
Burchell Hayman Parish FOR THE APPLICANTS
Halifax, Nova Scotia
John H. Sims, Q.C. FOR THE RESPONDENT, THE ATTORNEY
Deputy Attorney General of Canada GENERAL OF CANADA
Foster Hennessey MacKenzie FOR THE RESPONDENT, THE MI’KMAQ
Charlottetown, Prince Edward Island CONFEDERACY OF PRINCE EDWARD ISLAND