Federal Court of Appeal Decisions

     A-578-93

CORAM:      STONE J.A.

     LINDEN J.A.

     McDONALD J.A.

B E T W E E N :

    

     HER MAJESTY THE QUEEN as represented by the Minister of

     Indian and Northern Affairs Canada and the Attorney General of

     Canada and the BATCHEWANA INDIAN BAND

        

     Appellant (Defendant)

     - and -

     JOHN CORBIERE, CHARLOTTE SYRETTE, CLAIRE

     ROBINSON and FRANK NOLAN, each on their own behalf and

     on behalf of all non-resident members of the Batchewana Band

    

         Respondents (Plaintiffs)

     - and -

     CONGRESS OF ABORIGINAL PEOPLES

     - and -

     NATIVE WOMEN'S ASSOCIATION OF CANADA

     - and -

     LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL

     Intervenors

    

    

Heard at Toronto on September 23, 24 and 25, 1996.

Judgment rendered at Ottawa on Wednesday, November 20, 1996.

REASONS FOR JUDGMENT BY THE COURT

     A-578-93

CORAM:      STONE J.A.

     LINDEN J.A.

     McDONALD J.A.

B E T W E E N :

    

     HER MAJESTY THE QUEEN as represented by the Minister of

     Indian and Northern Affairs Canada and the Attorney General of

     Canada and the BATCHEWANA INDIAN BAND

        

     Appellant (Defendant)

     - and -

     JOHN CORBIERE, CHARLOTTE SYRETTE, CLAIRE

     ROBINSON and FRANK NOLAN, each on their own behalf and

     on behalf of all non-resident members of the Batchewana Band

    

         Respondents (Plaintiffs)

     - and -

     CONGRESS OF ABORIGINAL PEOPLES

     - and -

     NATIVE WOMEN'S ASSOCIATION OF CANADA

     - and -

     LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL

     Intervenors

    

     REASONS FOR JUDGMENT

    

BY THE COURT

     The issue in this appeal is whether subsection 77(1)¹ of the Indian Act, which requires that band members be "ordinarily resident" on the reserve in order to vote in band council elections, contravenes subsection 15(1) of the Canadian Charter of Rights and Freedoms which reads:

15.(l) 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.

This is not an ordinary section 15 case, however, because it requires an analysis of section 25 of the Charter and subsection 35(l) of the Constitution Act, to see whether section 15 is applicable in these circumstances.

     Involved in this appeal is a consideration of conflicting visions of Indian band democracy. One of the conflicting visions, the conventional one, is advanced by the Government of Canada and the Batchewana Indian Band (the "Band"), the appellant, and the Lesser Slave Lake Indian Regional Council² ("LSLIRC"), which has intervened in support of the appellant. The appellant and the LSLIRC support the residency requirement embodied in subsection 77(l) as a means of ensuring that those who vote in Band elections and as electors of the Band have an interest in and attachment to the community and culture of the Band, something they contend is central to its health and survival. Residence on the reserve, they argue, is fundamental to a connection with the Band, which is vital if the native culture is to flourish.

     The other vision of democracy is advocated by John Corbiere, Charlotte Syrette, Claire Robinson and Frank Nolan, the respondents on this appeal. They are all members of the Band. With the exception of John Corbiere, they do not live on the reserves of the Band. Along with the Intervenor Council of Aboriginal Peoples ("CAP") and the Intervenor Native Women's Association of Canada ("NWAC"), they challenge the residency requirement as an affront to the entitlement of all Band members to participate in all aspects of the life of the Band to which they belong, something they believe will lead to a richer future for the native culture. CAP is a national organization which represents approximately 750, 000 off-reserve and non-status Indian and Métis people. NWAC is also a national organization which, since 1974, has represented a conglomeration of smaller provincial, territorial and regional women's associations. Its members are predominantly status Indians living on and off-reserve, many of whom have been reinstated to Band membership under An Act to Amend the Indian Act ("Bill C-31").³

     The Trial Judge in this case held that there had been a violation of section 15 and fashioned a complex remedy, the operation of which was suspended, pending disposition of the appeal. We are in substantial agreement with his conclusions, but feel some variation of the remedy is required in light of new jurisprudence and new arguments made before us.

     Subsection 77(1) of the Indian Act provides that:

77.(l) A member of a band who has attained the age of eighteen years and is ordinarily resident on the reserve is qualified to vote for a person nominated to be chief of the band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors.

The function of the chief and the Band council generally is to manage affairs on the reserve and to make decisions concerning the land and money of the Band, subject to the authorization of the Minister of Indian Affairs and Northern Development ("the Minister").

     Subsection 77(1) also prevents members not ordinarily resident on the reserve from voting as "electors" in any referenda or other direct vote, because subsection 2(1) of the Indian Act defines an "elector" as:

2.(l) In this Act

"elector" means "a person who

(a) is registered on a Band List,

(b) is of the full age of eighteen years, and

(c) is not disqualified from voting at band elections;

Non-resident Band members, therefore, are disqualified from voting at Band elections and are also unable to qualify as "electors" in other types of democratic exercises.

     The respondents on this appeal do not seek a declaration of invalidity under section 52 of the Constitution Act, but only an exemption from its operation against them so as to allow off-reserve Band members to vote. This is based on the recognition that the factual circumstances and history of each Band governed by the Indian Act are different. They have argued that, by denying non-resident members of the Band the ability to participate in Band governance, subsection 77(1) violates their equality rights because it denies them a benefit, the right to vote, on the basis of an irrelevant personal characteristic, that is, non-residency on the reserve. They complain that, although all members of the Band are affected by the decisions of the Band government, only those members who live on the reserve are able to decide who will make up the Band council and take part in Band decision-making as "electors". Correcting this discrimination, they say, requires a remedy which enables them to vote at the next election scheduled in December, 1996 and thereafter. The appellant disagrees, contending that the Trial Judge erred in granting a remedy. Their arguments will be outlined in relation to each issue.

     Before addressing the section 15 analysis, it is first necessary to review the background of the Band and then to determine whether section 15 applies in the face of subsection 35(l) of the Constitution Act and section 25 of the Charter, the latter issues not having been argued at trial.

BACKGROUND

     In order to understand this appeal, the present circumstances of the Band should be described. In 1991, the Band was comprised of 1426 members, 468 on the reserve and 958 off the reserve.⁴ The Band currently has three reserves located on and around the east shores of Lake Superior: the Rankin Reserve; the Goulais Bay Reserve and the Obadjiwan Reserve. They are 3,743 acres, 1,995 acres and 167 acres in size respectively. The Rankin Reserve is located in close proximity to the city of Sault Ste Marie, while the other two reserves are north of the city in a more rural setting. The on-reserve population of the Band lives primarily on the Rankin Reserve, where, at the time the Bill C-31 Impact Study on the Band was released, there were 134 housing units with an average household density of approximately 3 persons per household.⁵ Services available on the Rankin Reserve include a Day Care which has a capacity of 40 children and a Junior school which has a capacity of 16 children. Recreation programs also exist on the Reserve for all Band youth. Students attending elementary and secondary schools off the reserve are transported by a band-owned school bus. The Band also administers education funds provided for students attending post secondary schools. The Band relies on a Registered Nursing Assistant to attend to the health and welfare needs of the Batchewana community. Hospital services are supplied by Sault Ste. Marie hospitals. Other services such as fire protection and policing are provided by Sault Ste. Marie departments. Band funds are received through the Department of Indian Affairs and Northern Affairs ("DIAND"), Federal and Provincial Government agencies and band operated activities.⁶ Between 1985 and 1989, the "...fastest growing source of band income" has been Band operated activities.⁷ The Band's largest expenditure in 1992 was for education.⁸

         Historically, the lands of the Band were located north of Sault Ste-Marie on the east shore of Lake Superior. The Band surrendered most of its original land through the Robinson-Huron Treaty of 1850 and the Pennefather Treaty of 1859. Following these two treaties, the Band was left with only one reserve on an island in the St. Mary's River. Beginning in 1879, attempts were made to try to expand the land base of the Band with the purchase of some small reserves. In 1952, a larger reserve at Rankin was established for the Band. Prior to the creation of this reserve, however, many Batchewana Band members had been living nearby on the reserve of another Band, the Garden River Reserve. A majority of the Band members did not live on their own reserves.⁹ It was not until an ambitious housing program was implemented at the newly created Rankin Reserve that the proportion of on-reserve members increased to the point where, in 1985, 69% of the membership lived on reserves of the Band.

    

     The ratio was reversed by 1991, however, when 68% of the Band members were again living off the reserves. This was largely due to the sharp increase in Band membership which occurred as a result of amendments to the Indian Act in 1985, usually described as Bill C-31.¹⁰ These amendments sought to correct the discriminatory effects of the old "marrying-out" and "enfranchisement" provisions of the Indian Act by reinstating to Indian status those who had lost their status as a result of these provisions. It also granted status to the children of those persons. As noted by the Trial Judge, "...in the period [between] 1985-1989, of the total growth of 678 in Band membership, 574 were brought in by virtue of Bill C-31".¹¹

         According to the Indian Act, all members of a Band, whether they live on or off the reserve, are entitled to the benefits of Band membership. A reserve is for the use and benefit of the Band as a whole.¹² Indian moneys held by her Majesty are to be used for the benefit of the Band.¹³ All members of the Band are entitled to a share in the proceeds of any disposition of lands held by the Band.

Subsection 35(1) of the Constitution Act:

     It was argued on this appeal by the Intervenor LSLIRC that the right to determine membership and the incidents of membership, such as voting eligibility, are aboriginal rights which ought to be protected under subsection 35(1) of the Constitution Act.¹⁴ Specifically, it was asserted that the rights to determine membership and the incidents of membership arise out of the nature of aboriginal title. The effect of recognizing such rights under subsection 35(1) would be to bring them within the protective sphere of section 25, which would in turn require the equality guarantee to be construed so as not to "abrogate or derogate" from the aboriginal rights.

     Subsection 35(1) provides:

35.(l) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (l) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (l) are guaranteed equally to male and female persons.

     The general framework of subsection 35(1) was outlined in R. v. Sparrow¹⁵: First, it must be established that the applicant is acting pursuant to an aboriginal right; second, it must be determined whether the right has been extinguished; and third, possible justification of that infringement will be considered. Only if the existence of an aboriginal right protected by subsection 35(1) is established, however, will the Court be required to undertake the second and third steps. In Van Der Peet v. The Queen,¹⁶ the Supreme Court of Canada recently articulated the approach to be taken in establishing the existence of an aboriginal right. Courts are to be guided and informed by the purposes for which subsection 35(1) was designed, namely, to recognize "the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as...the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory".¹⁷ These dual purposes are to be fulfilled by recognizing those aboriginal rights which meet the following test: "in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right".¹⁸ A number of factors are to be considered when applying this test, some of which are particularly helpful in this case. These factors include: the perspective of the aboriginal people claiming the right, the precise nature of the claim being made; whether the right claimed is of central significance to the aboriginal society in question and not merely incidental; whether the right claimed has continuity with practices which existed prior to contact; the availability of evidence specific to the aboriginal group which, although not necessarily conclusive, is sufficient to demonstrate the existence of the right; and, finally, whether the right reflects the distinctive nature of the aboriginal culture.¹⁹

     Turning to the argument in this case, namely, that there is an historic right to control Band membership and its incidents which flows from the nature of aboriginal title, Canadian jurisprudence on aboriginal title recognizes that an aboriginal right "attaches to land occupied and used by aboriginal peoples as their traditional home prior to the assertion of sovereignty".²⁰ Implicit in this concept, it was suggested, is an understanding of community and membership which necessarily entails the ability to control membership. It was argued that Mabo v. Queensland, an Australian High Court decision, makes this idea explicit by stating that, "so long as the people remain an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed".²¹ A necessary corollary of the community's ability to define its own membership, it was argued, is the ability to define the rights of participation of those members. It was also submitted that the idea of an identifiable community based on mutual recognition has consistently and continually been expressed in the Canadian legislative history of Band regulation.²²

     In order to assess the evidence to determine whether it leads to the recognition of an aboriginal right under subsection 35(1), it is first necessary, as was discussed in Van Der Peet, to "identify the nature of the right being claimed".²³ In this case, the right being claimed for the Band is the right to exclude non-resident members of the Band from democratic decision-making. To succeed in establishing that this right is protected, the evidence must demonstrate that the right to exclude non-residents from voting is a practice, custom or tradition integral to the distinctive culture of the Band. One of the factors which the Court in Van Der Peet used to determine whether a right satisfied the "integral to the distinctive culture test" was that "the existence of an aboriginal right...depend entirely on the traditions , customs and practices of the particular aboriginal community claiming the right".²⁴ This requirement is justified on the logic that, although "aboriginal rights are constitutional rights,...that does not negate the central fact that the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis".²⁵

     The relationship which aboriginal communities have historically enjoyed with the land is at the core of the recognition of aboriginal title as well as aboriginal rights. No evidence has been offered, however, to show how this relationship translates into a practice of excluding non-residents from voting which is integral to the Band and which existed prior to contact between aboriginal and European societies. Prior to 1902, the Band was governed by a hereditary life Chief.²⁶ As there was no electoral process in effect then, there could be no practice of applying a residency requirement to voters. Following this, elections were held fairly regularly pursuant to amendments to the Indian Act, but although there was a residency requirement in that scheme, for the convenience of non-resident members of the Band, polling stations were often located on the Garden River Reserve and at the Batchewana Village. Neither of these places was a reserve of the Band,²⁷ but substantial numbers of Band members lived there.

     In 1951, the Indian Act was amended so that only Band members who were "ordinarily resident on the reserve" could vote in the elections.²⁸ Pursuant to an Order-in-Council, elections of the Band were governed by this section.²⁹ Despite this, there is evidence that, at election time, a polling station continued to be set up on the Garden River Reserve, where a number of Band members continued to reside. A letter written to the Regional Director of the Department of Indian Affairs³⁰ dated November 26th, 1968 provides some insight into the electoral practices in operation in the Band at that time. It suggested that an Order-in-Council removing the Band from the electoral system and thus allowing it to revert to Band custom would better reflect the Band's practice of allowing those non-residents who lived on the Garden River Reserve to vote.

     In response to attempts to enforce the residency requirement by DIAND since approximately 1982, over one hundred Band members signed a petition requesting that the Department allow non-resident Band members to vote. The language of the petition is significant:

WE THE UNDERSIGNED MEMBERS OF THE BATCHEWANA BAND DO HEREBY PETITION THE FEDERAL DEPARTMENT OF INDIAN AFFAIRS TO RESTORE TO THE BAND'S NON-RESIDENT MEMBERS THEIR RIGHTS TO PARTICIPATE AS FULL AND EQUAL MEMBERS OF THE BATCHEWANA BAND AS ELECTORS TO VOTE IN BAND ELECTIONS AS OUR MEMBERSHIP HAVE BEEN ACCUSTOMED SINCE THE SIGNING OF BAND TREATIES FROM THE YEAR 1850 TO APPROXIMATELY 1962-1964.31

The petition went on to state that "this band custom was terminated by the Department of Indian Affairs without the consent of the band's membership".³² DIAND responded to the petition by conceding that, "[b]efore 1951, it might have been the custom of the Band to let every Band member vote, regardless of their residence. However, since the Band holds its election under the elective provisions of the Indian Act, residency on reserves is one of the requirements set in section 77 of that Act".³³ The debate over the residency requirement was, therefore, not resolved then and it continues to this day.

     In our view, on the basis of the facts as agreed by the parties, there is not enough evidence to establish that the exclusion of non-resident members from voting is an aboriginal right which ought to be given protection under subsection 35(1). Rather, the evidence demonstrates that, prior to 1902, there was no electoral system in place for the selection of a Band chief to which a residency requirement could be directed. Furthermore, this evidence also fails to satisfy the requirement that the right claimed must be shown to have existed prior to contact with European societies. Van Der Peet specifies that "...the time period that a court should consider in identifying whether the right claimed meets the standard of being integral to the aboriginal community claiming the right is the period prior to contact between aboriginal and European societies".³⁴ Without evidence of the existence of the practice prior to contact, the right to subsection 35(1) protection, which gives recognition to the prior occupancy of lands by aboriginal peoples, is not established. Consistent with the "case-by-case" approach which Lamer, C.J. has endorsed in Van Der Peet, however, it is not our intention to suggest that such a right may not be established by other aboriginal groups, if the evidence of their particular practices and history warrant it.

     A contradictory subsection 35(1) claim was raised by the Intervenor Council of Aboriginal Peoples, which argued that the right of all Band members to participate in the Band's governance ought not to be denied, but rather to be protected as an aboriginal right under subsection 35(1) of the Charter. No evidence was led, however, to establish the existence of this right prior to contact with European communities in relation to the Band. Instead, the focus of the CAP's submissions was on the standard to be applied in determining whether the infringement of this right by subsection 77(1) could be justified by the Sparrow test. Without first establishing the existence of the aboriginal right according to the test set out in Van Der Peet, however, the claimant cannot proceed to the second and third steps of the Sparrow test, namely, infringement of the right and justification of the infringement.

Section 25 of the Charter:

     It was also argued on appeal that section 25 of the Charter ought to protect the residency requirement reflected in subsection 77(1) of the Indian Act against the application of the equality guarantee. Section 25 states:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms that pertain to the aboriginal peoples of Canada including

    

(a) any rights or freedoms that have been recognized by the Royal Proclamation Order of October 7, 1763; and

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

     The function of section 25 is different from that of subsection 35(1) because it is not independently enforceable. Rather, its role is to act "as a shield which protects aboriginal, treaty and other rights from being adversely affected by other Charter rights".³⁵ If the right to limit voting to on-reserve members of the Band were recognized as an aboriginal right under subsection 35(1), then section 25 would operate to ensure that the right was not weakened by the operation of subsection 15(1).³⁶ We have found, however, that such a right was not established.

     It has been suggested, nevertheless, that the ability to impose a residency requirement on voting in Band elections might be considered to be one of the "other rights or freedoms that pertain to the aboriginal peoples of Canada..." as referred to in section 25 and that it is a right entitled to its protection in any event. While some academic commentary suggests that section 25 should be invoked where legislation such as the Indian Act has attempted to accommodate aboriginal difference,³⁷ we are not persuaded that the residency requirement, as imposed by the Indian Act, is a candidate for such protection. The purpose of section 25 is to protect those rights which belong to aboriginal peoples as aboriginal peoples. As our section 35(1) analysis of the residency requirement reveals there is insufficient evidence on this appeal to establish that the exclusion of non-resident Band members from decision-making reflects the distinctive aboriginal culture of the Band. Although the central thrust of the Indian Act is to accommodate and affirm aboriginal difference, not all of its provisions are aimed at achieving this purpose. One commentator suggests that "[t]he protection afforded to Aboriginal rights by s.25 may be particularly important to traditional forms of Aboriginal government which do not necessarily fall into the current western understanding of "democratic". Some traditional forms of Aboriginal government rely on hereditary chiefs or government based upon consensus, not necessarily relying upon democratic elections for legitimacy".³⁸ Some Indian Act provisions enacted to assist in the accommodation and implementation of such objectives may well be suitable for section 25 protection. Here, however, the Indian Act has imposed a system of democratic election. This system is not aimed at protecting and affirming aboriginal difference. Furthermore, despite the eloquent plea of Ms. Twinn, counsel for LSLIRC, the evidence adduced on this appeal has not established that a residency requirement in democratic elections is integral to the maintenance of a distinctive form of Aboriginal government.

     As a result, in our view, the evidence in this case cannot support the conclusion that the right to exclude off-reserve people is one of the "other rights or freedoms that pertain to the aboriginal peoples of Canada" to which section 25 should be applied.

Subsection 15(1) analysis:

     The next issue to be dealt with is whether, on the facts of this case, subsection 15(1) has been violated by denying the vote in Band elections and other matters of Band governance to non-resident members of the Band. The subsection 15(1) test to be followed is that which was originally articulated in Andrews v. Law Society of British Columbia by Mr. Justice McIntyre and summarized by Lamer, J. (as he then was) in R. v. Swain:³⁹

The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e. equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in "discrimination". This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant's s.15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits with the overall purpose of s.15 -- namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

The test is a two step exercise:⁴⁰ first, the person asserting the right must show a comparative denial of "equal protection" or "equal benefit" of the law. Second, this denial must be made on a discriminatory basis. In order to satisfy this second step, "...the claimant must show that the denial rests on one of the grounds enumerated in s.15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics".⁴¹ Where each of these two steps is satisfied, a violation of subsection 15(1) will be established and the onus will then shift to the party who supports the law to show that it is a limit which is "demonstrably justified in a free and democratic society" under section 1 of the Charter.

(a) denial of a benefit:

     Subsection 15(1) does not apply unless it can be demonstrated that a benefit has been denied to the claimant. In assessing whether a benefit had been denied in this case, the Trial Judge held that "...the denial of the vote in Band council elections, or for other purposes such as the approval of the surrender of any interest in the reserve, has a significant negative impact on those not ordinarily resident on the reserve".⁴² We agree with this finding. Where a democratic process of decision-making is adopted, the right to vote is fundamental.⁴³ It legitimizes government by representation. The essential feature of a democratic system, including the one governing the Band, does not flow from the ability to secure a particular political result, but rather from the ability to participate in the process of decision-making. In recognition of the importance of this right, section 3 of the Charter guarantees the right to vote in provincial and federal elections for all Canadian citizens.⁴⁴ When the right to vote is denied to certain members of a community for whom a governing body acts, they lose the benefit of the participation which legitimizes their representative democracy. Since the election of the Band council for the Band is, under the Indian Act, done by a democratic electoral process, it is clear that non-resident Band members have been denied a significant benefit.

     In order to better understand the extent to which non-resident members of the Band have been denied a voice in the operation and governance of the Band, it is useful to consider, as the Trial Judge did, the effect of subsection 77(1) on other sections of the Indian Act. Beginning with the effect of the voting restriction on the ability of non-resident Band members to participate in the disposition of lands, subsection 39(1) provides that "reserve lands may not be surrendered to Her Majesty (which would normally happen in the process of lands being leased or sold by the Crown to others) unless such surrender is approved by "a majority of the 'electors' of the band at a meeting or in a referendum".⁴⁵ The Trial Judge explained that the impact of subsection 77(1) on subsection 39(1) is such that "the "electors" who can approve a disposition of reserve lands do not include those members of the Band living off the reserve even though the land is held for the use and benefit of all members of the band".⁴⁶ Moreover, pursuant to subsection 64(1), the Minister, with the council of a band, may, among other things, authorize the per capita distribution of money derived from the sale of surrendered land and the expenditure of capital money on housing projects to individual members of the Band. Again, those members who do not live on the reserve will be unable to assist in selecting the Band council who advise the Minister on such decisions.

     Further, under the heading "Management of Indian Moneys" within the Indian Act, subsection 61(1) provides that "Indian moneys shall be expended only for the benefit of the Indians or Bands for whose use and benefit in common the moneys are received or held, and subject to this Act and to the terms of any treaty or surrender, the Governor in Council may determine whether any purpose for which Indian moneys are used or are to be used is for the use and benefit of the band ". Subsection 66(1) states that, "[w]ith the consent of the council of a band, the Minister may authorize and direct the expenditure of revenue moneys for any purpose that in the opinion of the Minister will promote the general progress and welfare of the band or any member of the band". Again, the Band council is entrusted with making decisions regarding revenue money which affect all members of the Band, whether or not they are entitled to participate in the selection of that council. The "net result" of these provisions, as was recognized by the Trial Judge, is that some expenditures of Indian moneys authorized by the Minister upon the consent of the elected Band council will "directly affect" members who were not permitted to participate in the election of Band council.⁴⁷

     In addition, a Band council is entrusted with a number of by-law making powers under subsection 81(1) of the Indian Act. This subsection allows the council of a band to make by-laws regarding the reserve. These powers include: the regulation of traffic; construction and local works; zoning; survey and allotment of reserve lands among members of the Band; control over sport and amusement and preservation of fish and game on the reserve.⁴⁸ They also include: health on the reserve; the observance of law and order; the prevention of disorderly conduct and nuisances; the removal and punishment of trespassers or persons using the reserve for prohibited purposes; the residence of Band members; the rights of spouses and children who reside with members of the Band on the reserve with respect to any of the areas in which the Band may make by-laws and any ancillary matters arising out of these by-law making powers.⁴⁹ Finally, the Band council has the power to impose a fine of up to one thousand dollars or imprisonment for up to thirty days for violation of any by-laws made under this section. Although it was found by the Trial Judge that by-law making powers do not impact on off-reserve members directly, many powers under subsection 81(1), if exercised, could have a significant and direct impact on the lives of both resident and non-resident Band members. The Intervenor Native Women's Association of Canada argued that through subsection 81(1) the Band councils have the power to affect the conditions of reserve life for women and their children with respect to safety, health care, education and housing issues which can play a pivotal role in their ability and desire to live on the reserve. As such, it is important for women who currently live off the reserve to be able to participate in the selection of the Band council, which has the power to influence whether the reserve will be a safe environment in which they can live without fear.

     This review of the functions of the Band council in relation to all of its members demonstrates that, by prohibiting non-resident Band members from participating in the selection of Band council, and by denying them any participation as electors of the Band, subsection 77(1) denies to non-reserve members a significant benefit of the law.

     Recognizing that not all denials of benefits are discriminatory, however, we will now turn to an analysis of whether "...the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others".⁵⁰

(b) is the denial discriminatory?

     (i) is non-residency on a reserve an analogous ground:

Whether or not a particular distinction is discriminatory within the meaning of subsection 15(1) is, in large part, now answered by the "enumerated and analogous grounds" approach. This approach has been explained by the Supreme Court, in Andrews, where McIntyre J. described how the analogous grounds analysis fits within the larger analysis of discrimination:⁵¹

The ..."enumerated and analogous grounds" approach most closely accords with the purposes of s.15 and the definition of discrimination outlined above and leaves the questions of justification to s.1. However, in assessing whether a complainant's rights have been infringed under s.15(1), it is not enough to focus only on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. The effect of the impugned distinction or classification on the complainant must be considered.

This passage alludes to a distinction between the analogous ground at issue and the group claiming the protection of that ground. The importance of this distinction was further developed in Schachtschneider v. Canada.⁵² In that case, it was explained that:

[b]oth the ground of discrimination and the group discriminated against are important under subsection 15(1). It is necessary to identify the ground of discrimination in order to determine whether the claim fits within the ambit of subsection 15(1). It is also necessary to consider the group claiming discrimination since the historical, social and political circumstances of that group influences the determination about whether an adverse distinction is discriminatory.53

In this case, although the analogous ground is the place of residence of Indian band members, the group which, it is alleged, requires the protection of section 15 is comprised of all those Band members living off the reserves.

     Wilson, J. further clarified the approach to be taken in the identification of analogous grounds when she wrote that "...this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society".⁵⁴ Most recently, McLachlin J. explained that the enumerated and analogous grounds are able to "...serve as ready indicators of discrimination because distinctions made on these grounds are typically stereotypical, being based on presumed rather than actual characteristics".⁵⁵ Further, McLachlin J. wrote that, although the jurisprudence has traditionally relied on the presence of historical disadvantage, characterization of the group as a discrete and insular minority, distinction on the basis of a personal characteristic, immutability of the characteristic and comparison to the enumerated grounds as prerequisites to finding an analogous ground, these factors should not become elements of a rigid formula. Instead, she reasoned that criteria such as immutability "...may be valid indicators in the inclusionary sense that their presence may signal an analogous ground. But the converse proposition - that any or all of them must be present to find an analogous ground - is invalid."⁵⁶ Instead, subsection 15(1) analysis should be driven by a recognition of what lies at the root of the equality guarantee, namely, whether the basis of distinction may serve to deny the essential human dignity of the Charter claimant.⁵⁷ The approach now used, therefore, is a flexible and open one. Indeed it might now be said that the categories of analogous grounds, like the categories of negligence,⁵⁸ are never closed.

     The Trial Judge held that non-resident members of the Band could be generally characterized as "...forming a group which historically has suffered disadvantage because of their inability to move onto the reserves".⁵⁹ In support of this conclusion, he relied on two historical features which were relevant to the situation of off-reserve members of the Band. First, the Trial Judge found that a shortage of adequate land existed following the surrender of 1850 pursuant to the Robinson-Huron Treaty. This shortage resulted in the inability of many Band members to move on to the reserves despite their wish to do so. The Trial Judge concluded this on the basis that, in the years following the creation of the Rankin Reserve, and with the aid of a "vigorous housing programme", the "proportion of Band members living on reserves had more than doubled from approximately 34% to 69%".⁶⁰ Second, he cited the impact of Bill C-31 as a further contributing factor to the characterization of non-resident Band members as a group in need of protection. The sudden increase in Band membership brought about by Bill C-31 created a situation in which the majority of Band members were living off the reserves of the Band. The Trial Judge viewed this situation in the context of the reason why Bill C-31 was implemented. He observed that the new members added pursuant to Bill C-31 were predominantly women, and the children of those women, who had lost their Indian status as a result of marriage to a non-Indian, pursuant to paragraph 12(1)(b) of the Indian Act, which was repealed, as noted by the Trial Judge, the day section 15 of the Charter came into force.⁶¹ Bill C-31 also reinstated those who, by their own choice or the choice of their parents, were "enfranchised" as Canadian citizens pursuant to paragraph 12(1)(a). Enfranchisement resulted in the loss of their Indian status. As a result, the Trial Judge found that Bill C-31 Band members "...were historically denied membership in their Band (and thus the right to live on a reserve) because of sex or race, their mother having married outside the Indian race or their parents having been obliged to give up Indian status in order to enjoy the same rights and undertake the same obligations as Canadians of other races".⁶² Although the intended effect of Bill C-31 was to correct the discriminatory effects of the Indian Act, the Trial Judge found that these Bill C-31 members were faced with a new challenge; "[h]aving been restored to Band membership they had lost under gender or racially based laws, they now find that their ability to reside on a reserve is limited".⁶³ Their situation, it might be said, went from being outcasts to being partial outcasts.

     According to the Trial Judge, the impact of these two factors was such that, while there may be some members of the group "...who have no desire to move onto reserves and who are by any normal measurement better off by not being on the reserves....there must be many among those on whose behalf this action is brought who cannot change their place of residence to the reserve, any more readily than a person can change his citizenship - a characteristic found in Andrews to be analogous to those specifically mentioned in subsection 15(1)".⁶⁴ The appellant challenges the Trial Judge's findings that the lands of the Band have, historically, been inadequate, that there is insufficient housing for people currently living off-reserve, and that most of those restored to membership in the Band as a result of Bill C-31 are women who lost their status through marriage to non-Indians and their children. The appellant also interprets the evidence of the named plaintiffs as demonstrative of a "choice" in each case not to live on the reserve for one reason or another, and so contrary to the finding of the Trial Judge that many of the Band members currently living off the reserve are prevented from moving onto the reserve by reason of housing and subsidy shortages.

     We are of the opinion that the Trial Judge's finding that residence on or off a reserve may be capable of change only "with considerable difficulty" was sufficiently supported by the evidence presented at trial. Despite the fact that, since the creation of the Goulais Bay Reserve in 1885, the Band has possessed a minimum of 1595 acres of land, most of this land, on the evidence, was "unsuitable". The creation of the Rankin Reserve in 1952, followed by the sharp increase in Band population living on the reserve, is evidence of this. Second, a memorandum written in 1939, which later led to the creation of the Rankin Reserve, recognized that additional reserve lands were required for the Band because "the reserve at Goulais Bay no longer offered good employment opportunities and there was a serious decline in commercial fishing production in neighbouring waters".⁶⁵ Third, the current situation on the Band's reserves is such that, although there are both serviced and unserviced lots available, the demand for subsidies required to build on those lots far exceeds their availability, making it entirely reasonable for the Trial Judge to conclude that "...many of the non-resident members on whose behalf this action is brought... will have no practical access to housing on the reserve for a long time".⁶⁶ In the Bill C-31 Impact Study done in relation to the Band, it was concluded that "[a]t the current rate of funding, the demand for subsidy homes greatly exceeds what can be supplied, resulting in an excess demand for housing of 28 unites in 1989".⁶⁷ Finally, although the Trial Judge was not presented with any direct evidence on the number of Band members reinstated as a result of Bill C-31 who were women and the children of women who had lost their status under paragraph 12(1)(b), it was not unreasonable for him to conclude that this group constituted a large proportion of those reinstated to membership in the Band. The driving purpose behind the implementation of Bill C-31 was to remedy discrimination against women who had "married out" of the Indian community. In the study conducted by DIAND on the impact of Bill C-31 generally, this commitment is clearly set out:

The amendments were enacted by all party consent to make the Act compatible with the Canadian Charter of Rights and Freedoms. The objectives of Bill C-31 were to remove discrimination on the basis of gender from the Act, to restore Indian status and band membership rights to eligible persons (particularly women who had lost their status through marriage to non-Indians) and to enable bands to assume control over their membership.68

Although the DIAND study, which was introduced by consent on this appeal, was not before the Trial Judge, it demonstrates that an obvious purpose of Bill C-31 was to provide relief for women and their children, who had been discriminated against in the past by being denied their status of Band members.

     Despite the sufficiency of the Trial Judge's findings on the law as it existed at the time, it is no longer necessary to prove something akin to "immutability" in the way it may have been argued at the time this trial was heard. Much effort, it turns out, was needlessly directed by counsel at examining housing availability on the Band's reserves. The case is not a housing case; it is a voting case. By focusing so much on the housing situation, counsel sought to draw attention away from the reason for which this subsection 15(1) challenge was brought - the denial of the vote on the basis of non-residency on the reserves. We now have the benefit of Miron, supra, which has clearly established that the indicia used in determining the existence of an analogous ground, including immutability, are but "analytical tools which may be of assistance".⁶⁹

     With this in mind, we are now able to examine the ways in which residency of Band members is an analogous ground deserving of protection under the Charter in a more purposive manner. First, the right to vote in Band elections has been denied on the basis of a characteristic, residence off the reserves, to which a stereotype has been attached. It has been suggested by the Crown in the context of section 1 analysis that the residency requirement serves as a rational and reasonable limit on the right to vote in Band elections because it allows only those with a close attachment and interest in the community to vote. It was also submitted that the reserve is necessary to the cultural survival of the Band, which must be carefully guarded by the electorate and not traded for profit. The implication is that Band members who do not live on the reserve cannot be trusted to use their electoral power in a manner which is consistent with the best interests of the Band. While this fear may indeed be felt by resident members of the Band, it has not been supported by any evidence on this appeal. It is clearly based on a stereotypical assumption about the personal characteristic of non-residency, which makes it a prime candidate for protection as an analogous ground.⁷⁰ In any event, the Minister, who must approve most major decisions, may protect the Band from any disadvantageous arrangements.

     Second, there is evidence that many members of this group have suffered from historical disadvantage which is independent of the challenged distinction, another indicia which supports the finding of an analogous ground.⁷¹ In R. v. Turpin, Wilson J. held that "[a] finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged".⁷² The sudden increase in Band members living off the reserves was, in large part, a consequence of Bill C-31, which was, as the Trial Judge pointed out, enacted to rectify historical discrimination on the basis of sex and race in the Indian Act.⁷³ Many among those who are currently denied the benefit of voting in Band elections were placed in this position because of the effects of prior discriminatory legislation. The DIAND study provides a profile of Bill C-31 registrants as a group:

Registrations fall into two general categories: restorations (pertaining to people who were registered at some time then lost their Indian status under the previous Act), and first time registrations. As of June 30, 1990, restorations (numbering 18, 493) represented 25% of all registrations under Bill C-31. About three-quarters of restorations were women who had lost status upon marriage to non-status males. First time registrations, 55, 061 as of June 30, 1990, were mainly the children and, when eligible, grandchildren of people whose status had been restored under Bill C-31.74

Further on in the DIAND study, it is reported that "[t]he largest proportion of Bill C-31 registrants are women over 25 years of age, living off-reserve in adult-only households or households with partners and children under 18 years of age".⁷⁵ As stated in the DIAND study, one of the "main objectives" of Bill C-31 was to rectify "discrimination on the basis of gender".⁷⁶ This was achieved in part by restoring Indian status and Band membership rights to persons affected by the discriminatory provisions. Such persons did not, however, regain everything they had lost. They did not regain their ability to participate in the democratic government of their Bands. Parliament, in an incomplete response, stopped short of correcting all of the discriminatory effects of the old provisions of the Indian Act. Consequently, subsection 77(1) remains as a vestige of the discrimination which Bill C-31 was intended to ameliorate.

     It may be that not all Band members who live off the reserves have been affected by this independent disadvantage. This does not, however, negate the relevance of this factor in establishing an analogous ground. In Dartmouth/ Halifax County Regional Housing Authority v. Sparks, Hallett J.A. of the Nova Scotia Court of Appeal recognized public housing tenants as an analogous ground by finding that, although not all such tenants share a background of historic discrimination, many of those who qualified for public housing did so because, for example, they are members of families headed by "...single female parents on social assistance, many of whom are black".⁷⁷ In other words, discrimination on the basis of personal characteristics such as race and sex suffered by some members of the group were found to be relevant to the analogous grounds analysis. This logic is equally applicable in the case before us.

     The political powerlessness which characterizes the group is a third and final factor which weighs in favour of establishing an analogous ground. The subsection 15(1) jurisprudence has in the past attempted to identify political powerlessness through the finding that a particular group constitutes a "discrete and insular minority".⁷⁸ On the facts of this case, it can be concluded that non-resident Band members suffer from exactly the kind of political powerlessness to which the protection of the analogous grounds is aimed. Although non-resident Band members are not now a minority in relation to Band members living on the reserve, their disenfranchisement guarantees that they are powerless to hold accountable the elected officials of the Band who govern them. One example of their political powerlessness is evidenced in the very mechanism by which the Band could remove itself from the application of subsection 77(1). Currently, the Band's elections are held according to the Indian Act because the Minister, pursuant to subsection 74(1), has made a declaration by order that the elections of this Band are to be so held. The Minister can also declare that this order be repealed, so that Band elections proceed according to "custom". While the system which is ultimately adopted by the Band under this latter alternative may or may not be consistent with its actual customary practices, the salient point is that, in the adoption of this new system, the Band may elect not to impose a residency requirement. Yet, as the Trial Judge pointed out, the policy of DIAND is that such an order will only be made by the Minister where it is supported by the Band council and the Band "electors". The Trial Judge recognized the unfairness of this result when he remarked that "...those very people now disqualified from voting because elections are conducted under the Indian Act would not have a voice in requesting a reversion to elections conducted by custom nor, would it appear, in defining that custom".⁷⁹

     This Charter challenge is the only means by which the respondents can make their voices heard. The suggestion that the plaintiff group cannot claim the protection of an analogous ground because they are geographically dispersed and thus not "insular", or because the reasons for which they live off-reserve vary, is not borne out by the analogous grounds jurisprudence, which focuses on the political, social and legal disadvantage of the group, not on its characterization as "insular". In Miron, supra, McLachlin J. recognized marital status as an analogous ground because unmarried persons suffered historical disadvantage and prejudice, and because the denial of benefits on the basis of such a distinction "...touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms".⁸⁰ The fact that members of the group in Miron, supra, may have had different reasons for being unmarried, or that they could in no way be classified as "discrete" or "insular" did not prevent their recognition as a group deserving of Charter protection.

     In conclusion, as we stated above, the categories of analogous grounds and groups deserving of protection under subsection 15(1) of the Charter, like the categories of negligence, are never closed.⁸¹ McLachlin J. recognized this when, echoing McIntyre J. in Andrews, she wrote in Miron, supra, that, "[o]ur approach must be generous, reflecting the "continuing framework" of the constitution and the need for "the unremitting protection" of equality rights".⁸² When the indicia of political powerlessness and historical disadvantage are added to the presence of stereotyping and the Trial Judge's finding that, even though not all Band members wish to live on reserves, residence on or off a reserve can be changed only "with considerable difficulty", it follows that the protection of the equality guarantee must be extended to the Band members who do not live on the Band's reserves.

(ii) does the denial of equality on the basis of residency violate the purpose of subsection 15(1)?

     In Miron, supra, McLachlin J. asserted that "in most cases", if the claimant is able to bring the distinction within an enumerated or analogous ground, this "suffices to establish discrimination".⁸³ This is because the grounds seek generally to identify those characteristics upon which any distinctions which are likely to be drawn will reflect stereotyping and prejudice. McLachlin J. goes on to explain, however, that not all such denials will violate "the purpose of s.15(1) - to prevent the violation of human dignity and freedom through the imposition of limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics, rather than on the basis of merit, capacity or circumstance".⁸⁴ In our view, the purpose of subsection 15(l) is violated here.

     The Trial Judge addressed the issue of whether discrimination had occurred on the basis of this analogous ground by drawing a distinction between the effect of having no electoral voice on matters which he characterized as being of "communal interest" to the Band and the effect of having no such voice on matters of local or reserve governance. He held that "...the restriction of the franchise to those Band members ordinarily resident on the reserve is based on an irrelevant personal characteristic when that franchise has to do with the disposition of lands and Indian moneys held by Her Majesty "for the use and benefit of the band", the "band" including all members and not simply those resident on the reserve".⁸⁵ Yet where "it is the object of the Indian Act to provide for a form of local government on reserves which is analogous to municipal government", the residency requirement could, according to the Trial Judge, no longer be described as an irrelevant personal characteristic.

     This reasoning was complained about by Crown counsel who urged that it was not pleaded, not argued and not called for. The practical difficulties of the solution were also enumerated. Because of the approach we adopt, however, we need not consider these objections.

     Although it is possible to distinguish between the kinds of functions performed by the Band council, in the light of the more recent cases, this distinction does not capture what is offensive about denying non-resident Band members the right to vote, namely, the statement it makes about those members. The statement is that the voices of non-resident Band members do not count, because they are "second-class" Band members. When membership in a body run by representative government does not include the ability to hold that government accountable, membership is largely illusory.

     Furthermore, the evidence is that the named respondents' interests lie beyond those which the Trial Judge characterized as being of "communal interest". Claire Robinson's interest is in the cultural life of the Band as well as the educational programs which are available for her children on the reserve.⁸⁶ Charlotte Syrette, who has regularly voted in Band elections in the past, is now unable to do so because she resides on the Garden River Reserve, which is not a reserve of the Band. She wishes to be able to vote in Band elections because she believes that the Chief is responsible for all members of the Band, not just those who live on the reserve. She also feels that his actions have an impact on all non-resident members including herself. Charlotte Syrette further described the Band as "...one big family, one trying to take care of the other".⁸⁷ Finally, Frank Nolan gave evidence at trial that he has an interest in organizing sporting activities for young people which could take place on the reserve and in ensuring that money is set aside for such activities.⁸⁸ Furthermore, he would like to be able to vote as an expression of his participation in the Band as well as his involvement "...in people who are representing [him] as a Native person".⁸⁹ As can be seen from this evidence, a distinction between "communal" and "local" matters does not address the crux of the discrimination felt by the respondents.

     The right to vote may well be subject to qualification, but only if that qualification does not arbitrarily or irrationally exclude. Throughout this appeal, the appellant has relied on an analogy to municipal voting rights, in which residency within the territory governed by the municipality is a well-recognized limitation on voting, in order to justify the residency requirement in the Indian Act. This analogy was also relied on in part by the Trial Judge. Despite the fact that many of the functions performed by the Band council are of a "local" nature to the extent that they relate to the operation of the reserve, this analogy ignores the fundamental distinction between a municipality and an Indian Band within the meaning of the Indian Act. The analogy is inapt. The function of a municipal government is to serve a certain geographic location, the function of a Band government is to serve a certain group of people, as defined by the Indian Act. Voting restrictions on the basis of residence are consistent with achieving the former, but they are fundamentally inconsistent with achieving the latter.

     The appellant also points out that there is no evidence that the Band council or the electors have exercised their legislative power in a manner which discriminates against non-resident Band members. They argue that there is, as of yet, no particular acts of discrimination to which subsection 15(1) can be applied. They rely on Lavigne v. Ontario Public Service Employees Union⁹⁰ for the proposition that, while the exercise of discretion may be the subject of Charter review, the statute which provides for the exercise of that discretionary power cannot be attacked because the discretion might in future be exercised in a discriminatory manner. Specifically, the appellant relies on the fact that non-reserve members and Bill C-31 members have received equal if not higher proportions of educational and housing subsidies provided by the Band.⁹¹ Furthermore, they say that there is no evidence that Indian moneys have been spent in a way which discriminates against non-resident Band members. This focus ignores the true complaint of the respondents, which is that subsection 77(1) discriminates against non-resident Band members on its face. The complaint is not about the outcome of the vote, but rather that non-resident Band members are prevented at the outset from having a chance to participate in that vote. This is the focus of the claim of discrimination, not their day to day treatment. The respondents need not demonstrate that any particular political result has occurred in order to successfully prove discrimination as a result of their exclusion from participation in the process through which that result is achieved.

     The distinction drawn by subsection 77(1) is, in every respect, discriminatory, having been made on the basis of an irrelevant personal characteristic which it is the purpose of subsection 15(1) to prevent. For this reason, we cannot limit our finding of discrimination to the impact of subsection 77(1) on matters of a "communal interest" to the Band. Such a result does not reflect the facially discriminatory nature of the legislation, nor does it accord with the evidence of the respondents regarding the matters which they feel are of interest to all Band members, whether or not they live on the reserve.

Section 1 analysis:

     Having found that subsection 77(1) violates the equality rights of off-reserve members of the Band, we must now consider whether the provision can be saved by section 1. In Miron, supra, McLachlin J. provided a succinct summary of the Oakes⁹² test:

Determining whether it has been demonstrated that the impugned distinction is "demonstrably justified in a free and democratic society" involves two inquiries. First, the goal of the legislation is ascertained and examined to see if it is of pressing and substantial importance. Then the court must carry out a proportionality analysis to balance the interests of society with those of individuals and groups. The proportionality analysis comprises three branches. First, the connection between the goal and the discriminatory distinction is examined to ascertain if it is rational. Second, the law must impair the right no more than is reasonably necessary to accomplish the objective. Finally, if these two conditions are met, the court must weigh whether the effect of the discrimination is proportionate to the benefit thereby achieved.93

For the reasons which follow, we find that subsection 77(1) may pass muster on the basis that its goal is of pressing and substantial importance, but it fails the first branch of the three branch proportionality analysis.

    

     The onus of establishing that the impugned provision is saved by section 1 falls on the Government. The Trial Judge found that this burden had not been satisfied with respect to the impact of subsection 77(1) on the ability of off-reserve members to participate in decisions regarding disposition of the Band's land and management of its money. Instead, he concluded that "[n]o rationale has been seriously advanced as to why members not resident on a reserve should have no input into such decisions when these decisions involve property held for the use and benefit of the entire Band and in which each member of the Band has a communal interest".⁹⁴ He went on to pose the problem faced by the appellant in the following way:

A fundamental concept of the Indian Act is that a person may have Indian status, band membership, and enjoy communal rights in property, both land and moneys, held by Her Majesty for the use and benefit of the band, without living on a reserve. How then can a law be justified which denies those who do not live on a reserve - some willingly, some unwillingly - any control over the disposition of that property when the consent of those who happen to live on the reserve must be obtained by Her Majesty for any such disposition?95

     No submissions were made to us on appeal which could overcome this absence of justification as identified by the Trial Judge. It was argued by the appellant that allowing off-reserve members to vote may lead to a decision by the Band to sell Band lands for profit to the irreparable detriment of future generations. As was discussed above in the subsection 15(1) analysis, this allegation was not supported by any evidence. An unsubstantiated allegation of this nature is not enough to justify discrimination against off-reserve members of the Band. It does not provide the answer to the Trial Judge's question, at least with respect to the impact of subsection 77(1) on matters of "communal interest".

     Consistent with our finding under subsection 15(1) that the discriminatory effect of subsection 77(1) is not limited to its impact on matters of "communal interest" alone, but instead is based on its denial of a fundamental right of participation, we do not limit our concern to decisions involving land and money. We restate the critical flaw in the appellant's section 1 submissions in the following way: no rationale has been seriously advanced as to why non-resident members of a Band should have no input whatsoever into decisions involving them and their Band.

     The appellant has argued that the similarities between municipal government and Band councils, to the extent that they manage Band reserves, provide this rationale. As we have already determined, however, a municipal analogy is of limited assistance in this context. The Indian Act does not define bands by residency, but by membership. All Band members regardless of residency have a stake in Band governance, even where it is directed mainly at life on the reserve.

    

     The reasons for which we refuse to uphold subsection 77(1) under section 1 are simply stated. In short, pursuant to the first branch of the proportionality test of Oakes, supra, subsection 77(1) fails as a reasonable limit prescribed by law because there is no rational connection between the legislative objective and the means taken to achieve it. The appellant Band has argued that the purpose of subsection 77(1) is to provide a voting mechanism for voting for a Band council and chief which exist primarily for the administration of on-reserve or local matters. While it may be possible to characterize the purpose of the subsection in this way, this qualification in the object of the provision is not sufficient to establish a rational connection between the goal of the legislation and the discriminatory distinction. Whether or not the Band council and chief exist primarily for this purpose does not, as we have discussed, address the crux of the type of discrimination at issue in this case. The discriminatory prohibition on voting by off-reserve members is not justified by the fact that Band governance is often concentrated on matters of interest exclusively to those on the reserve. The respondents' evidence has clearly demonstrated that Band members who do not live on the reserve continue to be vitally interested and concerned with issues and decisions relating to it. The Indian Act itself specifies that a reserve is for the use and benefit of all members of the Band, regardless of their place of residence.

    

     In our view, the objective of the provision must be construed more broadly than the appellant Band has suggested. To us, the purpose of subsection 77(1) is to establish a voting regime in which all those who are affected by the outcome of the vote are entitled to participate. This is the hallmark of a democratic system and is essential to evaluating the means taken to implement it. While establishing a voting regime in which all those who are affected by the outcome of the vote are entitled to participate is a "pressing and substantial" objective, it is not rational to deny a vote to those who do not live on the reserve, because they too are affected by the decisions of the Chief and the Band council, whose function it is to run the Band. They are bound by the decisions of the Chief and the Band council insofar as those decisions may impact on them.However, they lack the ability to hold the Chief and the Band council accountable. To exclude non-resident Band members from participating in their selection is, therefore, contrary to the principles on which the electoral provisions of the Indian Act were built. For this reason, we find that because there is no rational connection between the goal and the discretionary provision, subsection 77(1) of the Indian Act is not saved by section 1.

Fiduciary Duty of the Crown:

     In support of the respondents' position, it was argued by CAP that the residency requirement in subsection 77(1) constitutes a breach of the fiduciary duty owed by the Crown to aboriginal peoples. Specifically, it was argued that excluding members of the Band from participation in the Band on the basis of residency is inconsistent with the Crown's fiduciary obligation to act in the best interests of aboriginal peoples. In light of our findings under section 15 and section 17, it is not necessary for us to decide this issue. We remark in passing, however, that to apply the fiduciary duty in this context, where the dispute over competing visions of Band democracy is internal to the Band itself, would be an extremely novel exercise and one which has yet to find expression in the jurisprudence on the fiduciary duty.

Remedy:

     On the basis of the evidence presented on this appeal, we have found that subsection 77(1) of the Indian Act violates subsection 15(1) of the Charter in a manner which cannot be justified under section 1. The respondents are entitled to a remedy which rectifies this discrimination. The Order made by the Trial Judge was the subject of some disagreement on appeal. Despite distinguishing between the effects of the residency requirement on issues of "communal interest" as opposed to "local governance", the Trial Judge ordered a declaration of invalidity of subsection 77(1) in its entirety as it related to the Band. In rejecting other remedial alternatives, he stated that "[i]t is not possible to sever the invalid parts as subsection 77(1) conforms with or violates the Charter depending on the other sections governed by it".⁹⁶ He also rejected "reading in" as a viable alternative because, contrary to the guidelines set down in Schachter v. Her Majesty the Queen,⁹⁷ it would require speculation as to Parliament's intentions. The Trial Judge justified the limited application of the declaration to the Band on the ground that the evidence presented at trial addressed only the effects of the voting restriction on this particular Band. Finally, the Trial Judge postponed the declaration in order to allow Parliament an opportunity to redraft the provision.

     The appellant argues that the Trial Judge exceeded his jurisdiction in addressing the impact of subsection 77(1) on provisions in the Indian Act dealing with Indian moneys and land such as paragraph 39(1)(b) and subsections 64(1) and 66(1). It was also suggested that the Trial Judge had declared these provisions relating to matters of "communal interest" to be discriminatory as well. Although we do not rely on the distinction between matters of "communal interest" and "local governance" as adopted by the Trial Judge, it should be noted that we do not read the decision of the Trial Judge as producing a result which was beyond his jurisdiction. First, any reference to other provisions of the Indian Act was solely for the purpose of gaining an understanding of the impact of subsection 77(1) on the larger legislative framework in which it operates. This is a necessary inquiry in Charter analysis. Second, the Trial Judge did not hold that any provisions other than subsection 77(1) were discriminatory. Rather, he relied on the discriminatory effect of the impugned subsection on other provisions in the Indian Act in order to assist in explaining why subsection 77(1) contravened subsection 15(1) of the Charter. Such an explanation was well within his jurisdiction.

     The respondents request in their written submissions that, should the Order of the Trial Judge stand, the declaration read that subsection 77(1) is struck down as it applies to the Band. In the alternative they proposed a declaration that subsection 77(1) be struck down in its entirety as it applies to all Bands, which declaration should be suspended for all except the Band which would be exempted. In the further alternative they suggest that the "offending" portion, "and is ordinarily a resident of the reserve", be severed from the impugned provision. In oral submissions, the respondents chose to limit their written prayers for relief and to seek only a remedy limited to the Band. The request for a general declaration of invalidity of subsection 77(l) was abandoned at this point. We will proceed on this basis and attempt to fashion a remedy which that will apply only to this Band, mainly because in the end that is what was sought by the respondents, although the intervenors urged a more radical remedy.⁹⁸

     We are of the view that this is an appropriate case to grant a constitutional exemption. Professor Hogg states that "[t]he advantage of the constitutional exemption is that it enables the Court to uphold a law that is valid in most of its applications by creating an exemption for those applications that would offend the Charter".⁹⁹ Although the Supreme Court of Canada has yet to grant a constitutional exemption in a majority decision, various provincial appellate courts have done so. The Supreme Court of Canada has, nevertheless recognized the exemption as a possible remedial avenue. Lamer, J. (as he then was) affirmed this in R. v. Edwards¹⁰⁰ when he observed that "[i]n Big M Drug Mart Ltd.,...the majority of the court left open the possibility that in certain circumstances a 'constitutional exemption' might be granted from otherwise valid legislation to particular individuals whose religious freedom was adversely affected by the legislation".

     In order to gain a sense of the way in which exemptions can be used to remedy the unconstitutional effects of legislation, a review of appellate decisions in which they have been awarded is of assistance. First, in R. v. Seaboyer,¹⁰¹ the Ontario Court of Appeal adopted a constitutional exemption as a means of correcting the fact that section 276 of the Criminal Code could, in some cases, amount to a violation of an accused's section 7 and paragraph 11(d) Charter rights. This Criminal Code provision prohibited the use of evidence of a complainant's prior sexual activity by the accused in a sexual assault case, subject to certain exceptions. Grange J.A. awarded a constitutional exemption instead of a declaration of invalidity in part because "...it would be disastrous to declare the section invalid for all purposes and return to the position at common law where any evidence of prior sexual conduct was admissible so long as it was relevant to a material issue" and also because it would be "...almost impossible to set a practical test or detail the varied but rare occasions when evidence of sexual conduct with another person will be necessary to enable the accused to have an opportunity for full answer and defence".¹⁰² More generally, and most importantly, Grange J.A. considered the constitutional exemption as providing a

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result which satisfied section 52, which states that:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Although the exemption was not adopted by the Supreme Court for reasons which will be addressed below, Grange J.A.'s comments on the guidance which section 52 provides in the selection of a remedy are nonetheless still instructive.

    

     Second, in R. v. Westfair Foods Ltd.,¹⁰³ the Saskatchewan Court of Appeal adopted the use of constitutional exemptions on a case-by-case basis where a Sunday closing law did not provide a statutory exemption for people who observed their sabbath on a day other than Sunday. The Court of Appeal characterized the lower Court's decision to strike down the law in its entirety as both "excessive" and "unnecessary" on the ground that any difficulties in application could be overcome. It was thought that this was a preferable alternative to striking down a law which offended the Charter in only a limited way.¹⁰⁴ In a manner similar to the Ontario Court of Appeal's approach in Seaboyer, the Court further justified the use of a constitutional exemption by invoking the wording of subsection 52(1) itself:

[T]he court's power to render inoperative the whole of the law, not just its offending effects, is highly questionable in light of the language of 52(1). That section provides that any law which is inconsistent with the Constitution is "to the extent of the inconsistency" of no force or effect.105

The Court interpreted subsection 52(1) as imposing a positive obligation on Courts to award constitutional exemptions in cases where the inconsistency of a particular law is limited in its effect. The Court ultimately awarded the constitutional exemption under subsection 24(1), stating that "[i]ndividual remedies granted pursuant to s.24(1) can protect rights and freedoms adequately by dealing discretely and precisely with those situations where the effect of an otherwise valid law impinges a right or freedom".¹⁰⁶     

    

     Most recently, in Snow (Guardian ad Litem of) v. Kashyap,¹⁰⁷ the Newfoundland Court of Appeal awarded a constitutional exemption from a limitation period to a mentally disabled plaintiff who was attempting to sue his doctors. The Court justified its use of the exemption on the ground that, while the short limitation period violated subsection 15(1) of the Charter to the extent of its effect on the plaintiff, it was in other respects constitutionally valid. To this end, the Court stated that, while "...the two year limitation imposed by s.25 of the Medical Act...is not unconstitutional and the enactment addresses a legitimate social objective...[i]t is virtually impossible...for such a statutory measure of

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general application not to result in unfairness in some isolated instances".¹⁰⁸ Relying on Schachter,¹⁰⁹ in which Lamer C.J. held that an individual remedy under subsection 24(1) is available where "...the provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights", the Court awarded the plaintiff a constitutional exemption under subsection 24(1).

     In each of these decisions, the courts relied on the constitutional exemption in order to provide Charter relief only to the extent it was needed, instead of striking down legislation which served a legitimate purpose and was otherwise constitutional. This approach to laws which are found to be over-broad is consistent with the approach taken in the United States as summarized by Professor Tribe:

Of course, almost every law....is potentially applicable to constitutionally protected acts; that danger is not ordinarily thought to invalidate the law as such but merely to invalidate its enforcement against protected activity. A plausible challenge to a law as void for overbreadth can be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory way of severing the law's constitutional from its unconstitutional applications so as to excise the latter clearly in a single step from the law's reach.110

     Individual members of the Supreme Court of Canada have, at various times, considered the utility of constitutional exemptions, but the Court as a whole has not yet squarely confronted the issue. The Supreme Court's reluctance to rely on constitutional exemptions,¹¹¹ where it has been found that a law violates the Charter, stems in part from a concern that case-by-case justice may leave largely intact an offensive law that is over-inclusive. This concern over the breadth of judicial discretion that would be allowed was expressed by Wilson J. in her concurring judgment in Osborne v. Canada (Treasury Board),¹¹² a case in which the Supreme Court struck down a provision of the Federal Public Service Employees Act which prohibited public servants from working for a political party or candidate. Wilson J. stated that she did not believe it was open to the Court to "...cure over-inclusiveness on a case by case basis leaving the legislation in its pristine over-inclusive form outstanding on the books".¹¹³

     Another concern contributing to the reluctance of the Supreme Court in this area is that the constitutional exemption is capable of fundamentally altering laws created by the legislature. This reservation was articulated by McLachlin J. when the Supreme Court disagreed with the Ontario Court of Appeal's decision to award a constitutional exemption in Seaboyer.¹¹⁴ McLachlin J. warned that, "[w]here the effect is to change the law so substantially, one may question whether it is useful or appropriate to apply the doctrine of constitutional exemption".¹¹⁵ The extent to which this warning ought to limit the use of constitutional exemptions is unclear. Commenting on this, Professor Kent Roach stated that, "while [a] constitutional exemption will, by definition, bring about some changes to the law...[t]he Supreme Court of Canada appears to be concerned...that an exemption not fundamentally alter the law".¹¹⁶ Consequently, if the changes to the law that are made are minor, the exemption is a more attractive tool than if they are major.

     The relationship between the courts and the legislature was also commented on by Sopinka J., writing for the majority in Osborne.¹¹⁷ Although Sopinka J. held that "...the remedies of 'reading down' and its companion 'the constitutional exemption'" were not to be exercised in this case, he firmly acknowledged the role of the Courts in protecting Charter rights through the use of whatever remedy might be necessary.

In selecting an appropriate remedy under the Charter the primary concern of the court must be to apply the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective. This flows from the court's role as guardian of the rights and freedoms which are entrenched as part of the supreme law of Canada.118

Sopinka J. went on to concede that either reading down or a constitutional exemption "...may in some cases be the remedy that achieves the objectives to which we have alluded while at the same time constituting the lesser intrusion into the role of the legislature".¹¹⁹

     These concerns have found expression in various attempts by the Supreme Court to limit the circumstances in which a constitutional exemption ought to be used. In Seaboyer, McLachlin J., writing for a majority of the Court, rejected the constitutional exemption awarded by the Ontario Court of Appeal. In so doing, she cited three factors which militated against using the exemption to address the unconstitutional effects of the rape shield provision. First, McLachlin J. found that a constitutional exemption from section 276 of the Criminal Code would result in an expanded role for the discretion of the Trial Judge, "...an element which the legislature specifically chose to exclude", and an element which ensures that "...the will of the legislature becomes increasingly obscured".¹²⁰ As a result, "[t]he exemption, while perhaps saving the law in one sense, dramatically alters it in another".¹²¹ Second, McLachlin J. reasoned that, on the facts of this case, a constitutional exemption would have the same result as striking down the legislation, because in each case the effect would be to revert to a "...regime based on common law notions of relevancy".¹²² Third, and finally, McLachlin J. expressed concern over the difficulty of applying a constitutional exemption where the group to whom it should apply is defined solely according to criteria relevant to the Charter. Without the assistance of criteria external to the Charter on which to assess the application of a constitutional exemption, such as closing one's business for religious purposes on a day other than Sunday, as was the case in Big M Drug Mart and Edwards, McLachlin J. feared that the legal values of "certainty" and "predictability" would be jeopardized.¹²³

     In Rodriguez v. British Columbia (Attorney General)¹²⁴, Lamer, C.J. wrote a dissenting judgment which canvassed the existing jurisprudence on the use of constitutional exemptions. Having found that the prohibition on assisted suicide in paragraph 241(b) of the Criminal Code constituted a breach of fundamental justice contrary to section 7 of the Charter, Lamer C.J. would have awarded the appellant Ms. Rodriguez a constitutional exemption, subject to certain conditions regarding her continued ability to competently and freely choose assisted suicide. In reaching this conclusion, Lamer C.J. translated the factors cited by McLachlin J. in the context of the Seaboyer case into threshold requirements which he applied to the facts of this case:

[A]n over-broad blanket prohibition should not be tempered by allowing judicially granted exemptions to nullify it, and the criteria on which the exemption would be granted must be external to the Charter. That is, the fact that the application of the legislation to the party challenging it would violate the Charter cannot be the sole ground for deciding to grant the exemption; rather, there must be an identifiable group, defined by non-Charter characteristics, to whom the exemption could be said to apply.125

Drawing on Wilson J.'s comments in Osborne regarding the problems inherent in curing over-broad legislation on a case-by-case basis, Lamer C.J. further specified that "...constitutional exemptions may only be granted during the period of suspended declaration of invalidity".¹²⁶ Lamer C.J.'s award, in dissent, of the constitutional exemption was supported by L'Heureux-Dube, Cory JJ. and McLachlin J., who did not express any of the reservations which she raised regarding the use of a constitutional exemption in Seaboyer.¹²⁷

     Beyond these cases, use of the constitutional exemption remains relatively unexplored territory. Moreover, the Supreme Court has yet to consider the role of constitutional exemptions in the context of aboriginal law. As a result, academic commentary may be of assistance in this area, particularly in assessing the extent to which Osborne, Seaboyer and Rodriguez provide guidance for this Court. Addressing precisely this issue, Professor Roach expresses the opinion that, although Lamer C.J. relied on Wilson J.'s negative comments in Osborne as a basis for generally restricting the use of constitutional exemptions to periods of suspended declaration of invalidity in Rodriguez, the facts on which Osborne was decided are such that Wilson J.'s statement should only be read "...as a rejection of using constitutional exemptions to save legislation that would chill freedom of expression or threaten other Charter values".¹²⁸ Professor Roach also interprets Seaboyer as an "exceptional case" which "...should not inhibit the development of constitutional exemptions in other areas" due to the fact that common law rules of admissibility could be used to address the concerns raised in the context of the Charter claim.¹²⁹ Professor Roach concludes that "[i]n many other cases, there will not be a flexible common law background that can be modified and, in those cases, constitutional exemptions may be the only means for courts to advance the purposes of the law within the constraints of the Charter".¹³⁰ Also commenting on the status of the constitutional exemption as a remedy available for use by the courts, Professor Hogg states that, while Seaboyer "...rejects the constitutional exemption as the salvation of what the Court regarded as the overbroad rape-shield law...McLachlin J. made clear that she was not rejecting the solution in principle".¹³¹ The message to be taken from this is that the various attempts by the Supreme Court to specify the conditions in which the use of a constitutional exemption would be appropriate reflect, to a large extent, the nature of the particular legislation being challenged. Finally, Professor Roach takes issue with the requirement adopted in both Seaboyer and Rodriguez that "constitutional exemptions should not be used unless there are criteria outside the Charter".¹³² He states that dependence on this requirement "...ignores the purposive issue of whether certain applications of a law violate the Charter, as well as the mandate of s.52(1) to invalidate laws only to the extent of their inconsistency with the Constitution".¹³³ Professor Roach essentially envisions a purposive approach to the use of constitutional exemptions which is consistent with the approach taken in the appellate court decisions discussed above and that championed by Sopinka J. in Osborne.¹³⁴

     Without further definitive direction from the Supreme Court on the use of constitutional exemptions, our analysis must primarily be guided by the rationale or purpose which lies behind the constitutional exemption, namely, to ensure that applications of a particular law which offend the Charter are remedied only to the extent of their inconsistency with the Charter.

     In the unusual and special circumstances of this case, it is our view that a purposive approach requires the grant of a constitutional exemption. The finding that subsection 77(1) discriminates against non-resident members of the Band depends on the application of subsection 15(1). As was discussed at the outset of these reasons, however, where an equality analysis is attempted in the context of a case in which aboriginal rights are recognized, according to section 25, a Charter right such as subsection 15(1) cannot be "...construed so as to abrogate or derogate" from any aboriginal right. In such cases, subsection 77(1) may be found to be a constitutionally valid means of giving effect to an aboriginal right due to the impact of subsection 35(1) or section 25. The evidence before us on the history of the Band was not sufficient to invoke the protection of either of these sections on this appeal, and so the subsection 15(1) analysis proceeded in the absence of their influence. As we have suggested, this may not be the case where the history of another Band is placed before the Court. Consequently, to strike down subsection 77(1) in respect of all Bands, regardless of whether they are able to prove, on the basis of their individual histories, a claim for an aboriginal right to exclude non-resident members from decision-making, would be dangerous because it would overshoot the mandate of subsection 52(1). Thus, we find that the potential interplay of subsection 35(1) and section 25 with subsection 15(l) in the case of other Bands with different histories demands a constitutional exemption as the most appropriate remedy in this case. It is also significant that section 1 may impact differently on other Bands where different and more extensive evidence may be offered to attempt to justify a residency requirement for voting in Band elections.

         In light of these reasons, there being no problem with severance in this context, the appropriate remedy in this case should be that, with respect only to the Band, the words "and is ordinarily resident on the reserve" within subsection 77(1) are of no force and effect because of the inconsistency with the equality guarantee provided by subsection 15(1) of the Charter. Pursuant to the constitutional exemption to be granted, subsection 77(1), as it applies only to the Band, should now be read: "A member of a band who has attained the age of eighteen years is qualified to vote for a person nominated to be chief of the band and, where the reserve for voting purposes consists of one section, to vote for persons nominated as councillors".

     Such an exemption can be ordered either as an individual remedy under subsection 24(1) of the Charter or as a partial declaration of invalidity under subsection 52(1) of the Constitution Act.¹³⁵ Although the language of the respondents' request is more suggestive of a remedy under subsection 52(1),¹³⁶ the special nature of this case points rather to a remedy under subsection 24(1), which provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The finding of discrimination on this appeal has been dependent on evidence relating specifically to the off-reserve members of the Band. The Saskatchewan Court of Appeal's comment in Westfair Foods that a constitutional remedy under subsection 24(1) can "...protect rights and freedoms adequately by dealing discretely and precisely with those situations where the effect of an otherwise valid law impinges a right or freedom" is applicable in this case.¹³⁷ The remedy should thus be granted on an individual Band basis instead of being achieved as a consequence of a partial declaration of invalidity of subsection 77(1). While this remedy may ultimately be extended to other Bands whose electoral histories are similar to that of the Band, suggesting that a remedy under subsection 52(1) may at some point in the future be possible, insufficient evidence has been presented in this case to permit this. As a result, we grant the exemption under the power vested in this Court by subsection 24(1).

     The constitutional exemption should become effective immediately. There is no complexity, as there was in the remedy granted at the trial, which necessitated a suspension. Subsection 77(1) as we have altered it in relation to the Band now clearly specifies who will be entitled to vote in the Band elections: all those Band members over the age of eighteen years regardless of their place of residence. The mechanism for voting remains the same and, consequently, no transition period is required in order to implement a new one. The list of Band members, we were told, is kept up to date. Furthermore, we are aware that an election is upcoming shortly. Having found that subsection 77(1) is discriminatory, and that it has prevented members of the Band from voting in Band elections in the past, it is of utmost importance to rectify this discrimination prior to the next election. Since other Bands and the legislation itself are generally not affected by this exemption , there is no need to suspend the operation of our decision.

     As a final note, the underlying concerns which have prompted various members of the Supreme Court to qualify their acceptance of the exemption do not resonate as strongly in this case. First, in Van Der Peet, the Supreme Court explicitly endorsed a case-by-case approach to the recognition of aboriginal rights. To reiterate, Lamer C.J. held in Van Der Peet that "...the interests aboriginal rights are intended to protect relate to the specific history of the group claiming the right. Aboriginal rights are not general and universal; their scope and content must be determined on a case by case basis".¹³⁸ This approach must of necessity be reflected in the manner in which section 25 is used to shield aboriginal rights from Charter review. Consequently, the analysis of Charter remedies in the context of cases potentially involving aboriginal rights must be able to accommodate this approach. Without the benefit of the constitutional exemption, courts will be seriously limited in their ability to achieve this. Second, granting an exemption from the residency requirement to the Band will not alter the impugned provision's fundamental purpose. As we identified in our section 1 analysis, the purpose of subsection 77(1) is to implement a voting regime which grants the right to vote to those who have an interest in, and are affected by, the outcome of the electoral process. To exempt the Band from the residency restriction contained within this provision does not alter this purpose, it merely brings its application to the Band in line with the equality guarantee. Third, and

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finally, this is an area of the law in which the values of certainty and predictability may be outweighed by the importance of recognizing that Charter claims must be adjudicated in the context of the recognition of aboriginal rights which subsection 35(1) of the Constitution and section 25 of the Charter mandate. Drawing on the words of Sopinka J. in Osborne, we view the constitutional exemption in this case as a means to "...vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective".¹³⁹

     We would dismisss the appeal except to the extent that the judgment at trial should be modified in relation to the remedy granted as described above. Three quarters of the costs should be awarded to the respondents, who were substantially successful on this appeal.

    

    

     "A.J. Stone"

                     J.A.

     "A.M. Linden"

                     J.A.

     "F.J. McDonald"

                     J.A.

IN THE FEDERAL COURT OF APPEAL

     A-578-93

B E T W E E N :

    

HER MAJESTY THE QUEEN as represented by the Minister of Indian and Northern Affairs Canada and the Attorney General of Canada and the BATCHEWANA INDIAN BAND

        

     Appellant (Defendant)

     - and -

JOHN CORBIERE, CHARLOTTE SYRETTE, CLAIRE

ROBINSON and FRANK NOLAN, each on their own behalf and on behalf of all non-resident members of the Batchewana Band

    

         Respondents (Plaintiffs)

     - and -

CONGRESS OF ABORIGINAL PEOPLES

     - and -

NATIVE WOMEN'S ASSOCIATION OF CANADA

     - and -

LESSER SLAVE LAKE INDIAN REGIONAL COUNCIL

     Intervenors

    

     REASONS FOR JUDGMENT

__________________

¹      R.S.C. 1985, c.I-5.

²      The LSLIRC represents nine Indian bands referred to by the LSLIRC as "Reserve Communities": the Driftpile River Band, the Duncan Band, the Grouard Band, the Horse Lake Band, the Sawridge Band, the Sturgeon Lake Band, the Sucker Creek Band, the Swan River Band and the Sarcee Band.

³ S.C. 1985, c.27.

⁴ Bill C-31 Impact Study: Draft Report to Batchewana Indian Band, Rankin Reserve 15D, Goulai Bay Reserve 15A, Obadjiwan Reserve 15E, MacLaren Plansearch, March 1990, [hereinafter Bill C-31 Impact Study]. See also Exhibit D-11.

⁵ Ibid. at 4.

⁶ Ibid. at 12.

⁷ Ibid.

⁸ Batchewana First Nation of Ojibways, Financial Statements, March 31, 1992. BDO Dunwoody Ward Malle. Exhibit "250", Appeal book at 1014, [hereinafter Band Financial Statements ].

⁹ One year following the creation of the Rankin reserve, only 34% of the Band lived on the Band's own reserves.

¹⁰ Supra note 2.

¹¹ Batchewana Indian Band (Non-Resident Members) v. Batchewana Indian Band, [1994] 1 F.C. 394 at 402.

¹² Subsection 2(1) of the Indian Act, definition of "reserve".

¹³ Subsection 2(1) of the Indian Act, definition of "Indian moneys".

¹⁴      This precise issue has been decided against certain other plaintiffs by the Trial Division and is now under appeal in this Court, see Sawridge Band v. Canada, [1996] 1 F.C. 3.

¹⁵      [1990] l S.C.R. 1075.

¹⁶      [1996] S.C.J. No. 77.

¹⁷ Ibid. at para. 43, per Lamer, C.J..

¹⁸ Ibid. at para. 46, per Lamer, C.J.

¹⁹ Ibid. at paras. 48 - 75.

²⁰ Delgamuukw v. et al. v. B.C. et al., [1993] 5 W.W.R. 97 at 128, (B.C.C.A.) per Macfarlane J.A.

²¹ [No.2] (1992), 175 C.L.R. 1 at 61, as per Brennan J., [hereinafter Mabo].

²² This legislative history begins generally with the Royal Proclamation of 1763, which states that "Nations or Tribes of Indians...should not be molested or disturbed in possession of such parts of our Dominions and Territories as...are reserved to them", and finds clearer expression in An Act for the better protection of the Lands and Property of the Indians in Lower Canada, (13 & 14 Vict., c.42, 1850) which recognized as Indians those people who were of Indian blood, or were "reputed to belong" to a particular Body or Tribe or who were "residing among" them.

²³ Van Der Peet, supra note 16 at para. 51.

²⁴ Ibid. at para. 69 per Lamer, C.J.

²⁵ Ibid.

²⁶ Agreed statement of facts at para. 13. See also Goodwimmer et al v. Attorney General of Canada et al, [1995] 2 F.C.R. 389 at p.402, per Stone J.A. for an explanation of the evolution of voting in band elections.

²⁷ Ibid. at paras. 16-29.

²⁸ S.C. 1951, c.29; now section 77.

²⁹ P.C. 6015, November 12, 1951.

³⁰      Agreed statement of facts at para. 40.

³¹ Ibid. at para. 42.

³² Ibid.

³³ Ibid. at para. 43.

³⁴ Van Der Peet, supra note 16 at para. 60.

³⁵ William Pentney, "The Rights of the Aboriginal Peoples of Canada and the Constitution Act, 1982: Part 1, The Interpretive Prism of Section 25", 22 U.B.C. Law Rev. 21 at 29. In Steinhauer v. R., [1985] 3 C.N.L.R. 187 at 191, the Alberta Court of Queen's Bench held that s.25 acts as a "shield and does not add to aboriginal rights".

³⁶ See R. v. Nicholas and Bear, [1989] 2 C.N.L.R. 131, in which Dickson J. of the New Brunswick Court of Queen's Bench affirmed that subsection 15(1) cannot abrogate or derogate from rights established under section 35, even where those rights offend the Charter's equality guarantee.

³⁷ See Patrick Macklem, "Aboriginal Peoples, Criminal Justice Initiatives and the Constitution", Special Edition (1992), U.B.C. Law Rev., 280 at 291; Pentney, supra, note 35 and Thomas Isaac, Aboriginal Law: Cases, Materials and Commentary, (Saskatoon, Purich Publishing, 1995) 304.

³⁸ Ibid . at 305.

³⁹ [1991] 1 S.C.R. 933, at 992, quoting from Andrews [1989] 1 S.C.R. 143 .

⁴⁰      In spite of objections by several academics, see, for example, Beatty, "The Canadian Conception of Equality" (1996), 46 U.T.L.J. 349

⁴¹ Miron v. Trudel, [1995] 2 S.C.R. 418 at 485, per McLachlin J.

⁴² Batchewana Indian Band, supra note 1l at 413.

⁴³ Patrick J. Boyer, Political Rights: The Legal Framework of Elections in Canada, (Butterworths & Co. (Canada Ltd.), 1981) at 121.

⁴⁴ Section 3 states that, "every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein".

⁴⁵ Batchewana Indian Band, supra note 1l at 408.

⁴⁶ Ibid.

⁴⁷ Ibid. at 409.

⁴⁸ Subsection 81(1) of the Indian Act.

⁴⁹ Ibid.

⁵⁰ Swain, supra note 39 at 992.

⁵¹ Supra note 39 at 182.

⁵² [1994] 1 F.C. 40 per Linden J.A. concurring.

⁵³ Ibid. at 69.

⁵⁴ Andrews, supra note 39 at 152.

⁵⁵ Miron, supra note 4l at 487.

⁵⁶ Ibid., at 496.

⁵⁷ Ibid., at 486-487.

⁵⁸      Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) per Lord MacMillan at 619.

⁵⁹ Batchewana Indian Band, supra note 11 at 415.

⁶⁰ Ibid. at 414.

⁶¹ Ibid. at 414-15.

⁶² Ibid . at 415.

⁶³ Ibid. at 415-16.

⁶⁴ Ibid.

⁶⁵ Memorandum from the Acting Minister of Mines and Resources, Minutes of Meeting of Treasury Board, Approved by Governor General in Council.

⁶⁶ Batchewana Indian Band, supra note 1l at 403.

⁶⁷ Supra note 4 at 5.

⁶⁸ Impact of the 1985 Amendments to the Indian Act (Bill C-31), at "Overview", [hereinafter the "DIAND study"].

⁶⁹ Miron, supra note 41 at 496-97.

⁷⁰ Ibid. at 487.

⁷¹ [1989] 1 S.C.R. 1296 at 1332, per Wilson J.

⁷² Ibid.

⁷³ In the DIAND study, supra note 68, it is stated at p.14 that "[a]lthough the trend towards off-reserve residence had been evident before Bill C-31, the ratio of off-reserve to on-reserve status Indians, which was about 30:70 in 1985, had shifted to 40:60 by June 1990".

⁷⁴ Ibid. at 12.

⁷⁵ Ibid. at 25.

⁷⁶ Ibid. at 1.

⁷⁷ (1993), 101 D.L.R. (4th) 224 at 234.

⁷⁸ In Turpin, supra note 7l, Wilson J. found at p. 1333 that persons accused of certain criminal offences residing outside of Alberta could not be classed as a "discrete and insular minority" primarily on the ground that such a finding would not "...advance the purposes of s.15 in remedying or preventing discrimination against groups suffering from social, political and legal disadvantage in our society".

⁷⁹ Batchewana Indian Band, supra note 11 at 405.

⁸⁰ Supra note 41 at 497.

⁸¹      Donoghue v. Stevenson, supra, note 58.

⁸² Supra note 41 at 494.

⁸³ Ibid. at 492.

⁸⁴ Ibid.

⁸⁵ Batchewana Indian Band, supra note 11 at 417.

⁸⁶ Trial Transcript, at 229-230; 232-233.

⁸⁷ Ibid. at 268; 270-71.

⁸⁸ Ibid. at 95.

⁸⁹ Ibid. at 89.

⁹⁰      [1991] 2 S.C.R. 211 at 310-11.

⁹¹ Band Financial Statements, supra note 8 at 1036 and 1056.

⁹²      R. v. Oakes, [1986] 1 S.C.R. 103.

⁹³ Supra note 4l at 503.

⁹⁴ Batchewana Indian Band, supra note 11 at 419.

⁹⁵ Ibid. at 419-20.

⁹⁶ Batchewana Indian Band , supra note 11 at 422.

⁹⁷      [1992] 2 S.C.R 679 at 705-15.

⁹⁸      The appellant Indian Band argued that the determination of this issue could be more appropriately resolved outside the Charter by way of an order declaring that the Order-in-Council which places the Band under the purview of subsection 77(1) be declared of no force and effect. This remedy, they argued, would avoid inserting the Charter into the affairs of the band and would allow the band an opportunity to develop a customary system of election. In the alternative, they requested that this declaration be issued as an individual remedy under subsection 24(l) of the Charter. What the Band requests, essentially, is that this Court step into the shoes of the Minister by exercising the discretionary power held by the Minister to remove a band from the "list" to which subsection 77(l) applies. This Court is not empowered to take on this role, and so we are not in a position to entertain this request.

⁹⁹ Peter W. Hogg, Constitutional Law of Canada, Third Edition, (Toronto: Carswell, 1992) at 37.1(g).

¹⁰⁰ [1986] 2 S.C.R. 713 at 783. See also Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 where a limited role for the exemption is outlined.

¹⁰¹ (1987) 37 C.C.C. (3d) 53, aff'd on different grounds [1991] 2 S.C.R. 577.

¹⁰² Ibid. at 68.

¹⁰³ (1987), 58 Sask. R. 274 (Q.B.), var'd 65 D.L.R. (4th) 56, 80 Sask. 33, (Sask.C.A.) See also R. v. Videoflicks (1985), 14 D.L.R. (4th) 10 (Ont. C.A.) per Tarnopolsky, J.A.

¹⁰⁴ Ibid. at 71-2.

¹⁰⁵ Ibid. at 72.

¹⁰⁶ Ibid. at 72.

¹⁰⁷ (1995), 125 Nfld. & P.E.I.R. 182.

¹⁰⁸ Ibid. at 200.

¹⁰⁹ Supra note 97 at 719-720.

¹¹⁰ American Constitutional Law (New York: The Foundation Press Inc., 1978), at 710-7l1.

¹¹¹ This reluctance is paradoxical since the notorious notwithstanding clause of section 33 permits what, in a sense, is a constitutional exemption, albeit one that may be claimed by Parliament or a provincial legislature, rather than one that is granted by the Courts.

¹¹² [1991] 2 S.C.R. 69 at 76-77.

¹¹³ Ibid. at 76-77.

¹¹⁴ Supra note 101.

¹¹⁵ Ibid. at 628.

¹¹⁶ Kent Roach, Constitutional Remedies in Canada, (Aurora: Canada Law Book, 1991) at para. 14.750.

¹¹⁷ Supra note 1l2.

¹¹⁸ Ibid . at 104.

¹¹⁹ Ibid. at 104-105.

¹²⁰ Supra, note l0l at 628.

¹²¹ Ibid.

¹²² Ibid.

¹²³ Ibid. at 629.

¹²⁴ Supra , note 100.

¹²⁵ Ibid. at 576.

¹²⁶ Ibid. at 577.

¹²⁷ McLachlin J. concurred "generally" with the reasons of Lamer C.J. on this issue, although she made some comments on the conditions under which Lamer C.J. would have awarded the exemption, such as the ascertainment of consent on a daily basis and the time limit to be placed on the certificate ordered by the trial judge. Ibid. at 629.

¹²⁸ Supra note 116 at para. 14.850.

¹²⁹ Ibid. at para. 14.780; para. 14.760.

¹³⁰ Ibid. at para. 14.780.

¹³¹ Supra note 99 at 37.12.5.

¹³² Supra note 116 at para. 14.820.

¹³³ Ibid.

¹³⁴ Supra note 112.

¹³⁵ Professor Roach states at para. 14.550 that "[c]onstitutional exemptions have been awarded as a remedy to individuals under s. 24(1) of the Charter or as a consequence of a partial declaration of invalidity under s.52(1) of the Constitution Act , 1982". Supra note 116.

¹³⁶ The respondents request in their written submissions that the declaration strike down subsection 77(l) as it applies to the Band.

¹³⁷ Westfair Foods, supra note 103 at 72.

¹³⁸ Supra note 16 at para. 69.

¹³⁹ Supra note 112.