Section 6 of Indian Act (Can.) is not service pursuant to s. 5 of Canadian Human Rights Act

Federal court | Human Rights Legislation

HUMAN RIGHTS COMMISSION/TRIBUNAL

Section 6 of Indian Act (Can.) is not service pursuant to s. 5 of Canadian Human Rights Act

Complainants were registered as Indians under s. 6(2) of Indian Act (Can.) (IA), but were married to individuals who were not registered or entitled to be registered under IA. Complainants had children and applied for registration on behalf of children, but applications were refused. Complainants brought human rights complaints alleging that application of s. 6 of IA by government agency was discriminatory because it denied them ability to pass Indian status to their children. Human Rights Tribunal found it did not have jurisdiction to hear complaints under Canadian Human Rights Act (CHRA), because complaints were directed against legislation. Tribunal held that s. 6 of IA should be dealt with as challenge under Canadian Charter of Rights and Freedoms. Tribunal found that s. 6 of IA was not service pursuant to s. 5 of CHRA. Tribunal relied on PSAC v. Canada Revenue Agency (2012), 346 D.L.R. (4th) 488, 212 A.C.W.S. (3d) 870 (F.C.A.) (Murphy). Complaints were dismissed. Human Rights Commission applied for judicial review. Application dismissed. Standard of review was reasonableness. Murphy determined that legislation was not service as defined in s. 5 of CHRA. Legislative criteria that were determined by Parliament to identify individual as Indian were not service as envisioned by s. 5 of CHRA. Processing applications for registration might constitute service but not criteria that needed to be met to be registered as Indian under IA. Challenge to way formula was applied was challenge to law itself. It was law that denied access to benefit and not government agency. Tribunal’s analysis was reasonable, as was its reliance on Murphy. Murphy was binding and was not inconsistent with Supreme Court of Canada jurisprudence. Tribunal could not disregard binding jurisprudence on point from Federal Court of Appeal. Tribunal did not dispute that human rights legislation could render other legislation inoperable. Tribunal found it did not have jurisdiction to consider legislation as service in s. 5 of CHRA and primacy was not at issue. Tribunal did not err by failing to interpret s. 5 within context of former s. 67 of CHRA. It was possible to conclude that reasons for implementing s. 67 was to give Parliament opportunity to consult with First Nations regarding changes to IA. However, evidence was not sufficient to show that registration was intended to be service pursuant to s. 5 of CHRA. Section 67 was implemented prior to Charter and would have been only way of challenging IA provisions as discriminatory. Since Charter came into effect it was clear that Charter was appropriate means to bring challenge. Repeal of s. 67 would not be meaningless if tribunal followed Murphy. Tribunal’s decisions were reasonable.
Canadian Human Rights Commission v. Canada (Attorney General) (Mar. 30, 2015, F.C., Glennys L. McVeigh J., File No. T-1088-13, T-1777-13) 252 A.C.W.S. (3d) 308.

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