The Métis and Section 15: The Political Game of Cultural Line-Drawing in Alberta v. Cunningham

On July 21, 2011, the Supreme Court of Canada handed down its decision in Alberta v. Cunningham. Our senior contributing editor Joseph Marcus discussed the case earlier this week. Given the significance of this case, and its contribution to the section 15(2) jurisprudence, guest contributor Marina Chernenko provides some additional analysis about the decision’s implications.

In Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, the Supreme Court’s latest, unanimous pronouncement on s.15 of the Charter, Métis claimants challenged provisions of the Métis Settlements Act (“MSA”), which terminate the membership in Métis settlements of members who choose to register as status Indians under the Indian Act.

The claimants argued that registration as a status Indian constitutes an analogous ground of discrimination under s.15 and withholding Métis settlement membership on that basis violates s.15(1).

The Supreme Court found that although registration as a status Indian may be an analogous ground of discrimination—this point was assumed without deciding—the impugned provisions of the MSA were saved by s.15(2) since they constitute a genuinely ameliorative program.

Cunningham is significant because it clarifies the test articulated in R. v. Kapp, 2008 SCC 41, for determining whether a program is ameliorative under s.15(2), providing a highly deferential definition of what distinctions on prohibited grounds are “necessary” to the ameliorative purpose of a program. This highly deferential definition, in turn, has negative implications for substantive equality.

Facts & Judicial History

The MSA is the culmination of negotiations between the Alberta government and Métis in the province, which sought to establish Métis land settlements as a means to protect and foster Métis culture, identity, and self-government. The claimants were formal members of a Métis community established pursuant to the MSA. In order to access otherwise unavailable medical benefits, the claimants voluntarily registered as status Indians under the Indian Act, thereby triggering section 90 of the MSA and resulting in the revocation of their settlement membership.

The chambers judge dismissed the claim that the denial of membership under provisions of the MSA was unconstitutional due to violations of ss. 2, 7, and 15. The Court of Appeal disagreed, finding that revoking the membership of a group of people that had identified with the Métis culture and lived on a Métis land settlement for most, if not all, their lives could not be “in furtherance of the enhancement and preservation of Metis culture, identity, and self-governance.”

Since there was no evidence that Métis culture on land settlements was being undermined by Indian presence or that the number of status Indians seeking membership was so large as to undermine the purpose of the MSA, the court found that the government had failed to establish that the exclusion on the basis of Indian status was “necessary” to the goals of the legislative scheme. Thus, the Court of Appeal allowed the appeal, finding that the provisions violated s.15 in a manner that could not be justified under s.1.

Decision and Implications

Writing for a unanimous court, McLachlin CJ clarified the test for establishing whether a government program that makes distinctions on an enumerated or analogous ground of discrimination is saved by s.15(2). In order to “save” such legislation, the government must show that the legislation 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, that there is a correlation between the program and the disadvantage suffered by the target group, and that rational means are being used to pursue the ameliorative goal.

The object of the MSA was found to be “the enhancement and preservation of the identity, culture and self-governance of the Métis through the establishment of a Métis land base.” In order to uphold the provisions of the MSA, the Court had to find that the distinction between Indians and Métis correlated with the object of the Act. Given how the object of the MSA was framed, the Court’s conclusion required a finding that Indian and Métis cultures are sufficiently distinct so that the former constitutes a threat to the identity of the latter. At para. 75, the Court noted:

Metis have claimed an identity based on non-Indianness. They have persistently distinguished themselves as a people from the other dominant Aboriginal group in their territory—Indians. The obverse side of the struggle of the Metis to preserve their distinct identity and culture is the fear that overlap and confusion with the larger Indian cultures would put their identity and culture at risk.

A finding that Indian and Métis cultures are distinct, on its own, is all good and well. A troubling aspect of the decision is the low evidentiary burden on a government seeking to save legislation on the basis of s.15(2). Although a distinction on a prohibited ground must be “necessary” (per Kapp) to the ameliorative purpose, “‘necessary’ should not be understood as requiring proof that the exclusion is essential”; all that is required is “that the impugned distinction in a general sense serves or advances the object of the program.”

The burden on the government, as a result, is a much lighter one than the Court of Appeal would have imposed. Section 15(2) can therefore insulate underinclusive ameliorative legislation from scrutiny without any concrete evidence that including an excluded group would undermine the objects of the program. In other words, as long as there is a conceptually rational connection between the distinction and the object of an ameliorative program, the judiciary is to defer to the judgment of the legislature in how it chooses to “draw lines” between groups.

When a relatively more powerful group challenges ameliorative programs devised for a historically marginalized segment of the population, such a deferential approach makes sense. Hence, McLachlin’s reference to “reverse discrimination” claims in the context of affirmative action programs in the United States. This was also the case in Kapp. The justification for such a deferential approach is diluted, however, when both the included and excluded groups are comparably disadvantaged and, in many ways, share common histories and identities.

It is in such circumstances that requiring the government to simply show a rational connection between the lines it has drawn and the object of a program proves to be an inadequate means of holding the government accountable and ensuring, as best as possible, that the promise of substantive equality does not ring hollow.

Section 15(2) saves legislation that would otherwise be subjected to the rigours of s.15(1) and s.1. While the government must categorize and “draw lines” in order to render its population legible, without any analysis of minimal impairment and proportionate effects at the s.15(2) stage, the judiciary absolves itself of the responsibility of questioning where those lines are drawn and on the basis of what evidence.

Since the object of the ameliorative program was fostering culture, the Court found that distinguishing between Métis and status Indians on the basis of differences in culture was rationally connected to the object. According to this logic, however, a Métis person who registers as a status Indian would have to become culturally “Indian” in order to undermine the object of the ameliorative program.

On the facts, however, it appears as though the Métis claimants did not so much become Indian culturally as they did economically (i.e., by accessing government resources). Analytically, the work that “culture” was doing in the Court’s reasoning was to rationalize a dividing line between two disadvantaged groups. In reality, it appears that it was the political and economic distribution of resources that was doing the heavy lifting in the government’s decision-making calculus, not culture.

The Court’s deferential approach to s.15(2) allowed the government to rely on “culture” because it was rationally connected to the object of the MSA, not because there was evidence that Indian culture constitutes a real threat to the fostering of Métis culture on land settlements. The Court’s deferential approach, in other words, translates into a failure to interrogate the political and economic underpinnings of cultural line-drawing. Or, more concretely, it means that the government can get away with forcing people to choose between their culture and their health care.