Aboriginal customary adoptions given the same legal status as legal adoptions in Canada
Beattie v Aboriginal Affairs and Northern Development Canada [2014] CHRT 1 (10 January 2014)
The Canadian Human Rights Tribunal has held that in determining lineage for Indian status entitlements, customary adoptions should be recognised. In coming to this conclusion, the Tribunal provided much needed guidance on what amounts to a “service” under anti-discrimination law, reversing its previous views that registration of status was not a service.
Facts
In 1949, Joyce Beattie was adopted in accordance with local Aboriginal custom, as her natural mother could not care for her on account of illness.
In 1951, the Indian Register was created as a central register to record the names of every person who is entitled to be registered as an Indian. The criteria for registration are set out in the Indian Act and are to be determined by the Registrar. Eligibility is based on lineage, which includes through adoption.
When she was married in 1974, Mrs Beattie lost her entitlement to registration under a “marrying out” provision in the Indian Act in force at the time, which applied only to women marrying a “non-Indian”. Any entitlement that her children had was also lost. Amendments in 1985 meant that Mrs Beattie would be entitled to be registered under her biological parents. Her children were entitled to be registered because they had one Indian parent but her grandchildren would not be able to register.
Amendments in 2010 entitled Mrs Beattie to registration under her adoptive parents. However, her application to have her registration category changed from her biological parents to her adoptive parents was refused by the Registrar based on the Registrar's interpretation of the word “child” in the Indian Act. Her grandchildren would only be entitled to registration if she was registered under her adoptive parents.
Two and a half years later, in January 2013, the Registrar wrote to Ms Beattie advising that it had altered its interpretation of the Indian Act. As a result, the registration categories of her children were changed to that of her adoptive parents and her grandchildren had been added to the Register. Despite this change of registration, the Registrar’s refusal for over two years had negative and adverse impacts on Ms Beattie and her grandchildren.
In January 2011 Mrs Beattie made a complaint to the Canadian Human Rights Commission under section 5 of the Canadian Human Rights Act (CHRA) that refusal of her application amounted to discrimination on the basis of family status.
Decision
To establish that discrimination had occurred on the basis of family status Mrs Beattie needed to establish that the Indian Registrar was engaged in the provision of services “customarily available to the general public”, within the meaning of section 5 of the CHRA, and that those services were either denied to her or that she was adversely differentiated against in the provision of those services.
“Services customarily available to the general public” is not defined in the CHRA but the case law indicates that section 5 contemplates a service as something of benefit being held out as a service offered to the public, in the context of a public relationship. It does not have to be available to all members of the general public, being available to a segment of the public will suffice.
The Tribunal previously held, in Andrews v Canada (Indian Affairs and Northern Development) (No 2) (CHRR Doc 13-3127), that decisions regarding eligibility for Indian status under the Indian Act do not involve a “public service” and are therefore not reviewable under the CHRA.
The Tribunal, in Mrs Beattie’s case, reversed its previous view. It held that services performed by government are deemed to be necessary for and of benefit to the public, otherwise they would not need to be performed. A service, such as the processing of an application for registration under the Indian Act to determine whether it complies with the legislative requirements for registration, represents necessary work performed by government for the benefit of the public. Thus, if the work results in an application being approved and registration taking place, certain benefits will be conferred, e.g. health benefits, education funding and tax exemptions. Where the failure to provide a service in a non-discriminatory manner results in an adverse or negative impact on a member of the public, a complaint under the CHRA can be substantiated.
The Registrar's refusal to amend the registration category had a number of negative and adverse impacts including that the complainant did not receive the benefit of being legally recognised as a custom adoptee. By failing to legally recognise her adoption, her dignity was depreciated. Also, by being unable to transmit her Indian status to her grandchildren they were denied the opportunity to access tangible benefits available to persons registered as Indians.
The Tribunal then looked at whether there was discrimination on the basis of family status. Where a statute has ambiguous language that can be interpreted in more than one way, the CHRA requires that the administering department choose the interpretation that is most consistent with human rights principles (Hughes v Elections Canada, 2010 CHRT 4). The Tribunal held that the Registrar's initial, narrow interpretation of the word “child” in the Indian Act was incorrect and resulted in negative impacts for the complainant and her descendants. In making this incorrect initial interpretation the Registrar failed to choose the broad, liberal and purpose interpretations most consistent with human rights principles.
The refusal to change the complainant's registration category for two and a half years therefore constituted a denial of a service within the meaning of section 5 of the CHRA as the Registrar’s actions involved an improper discriminatory assessment of her entitlement to registration. It also constituted an adverse differentiation in the provision of a service within the meaning of section 5 of the CHRA as it involved drawing an adverse distinction in its legal interpretations for custom adopted children compared to biological children. The adverse differentiation was based on the Complainant's status as a custom adoptee and as such falls within the prohibited ground of “family status”.
Commentary
Anti-Discrimination and human rights legislation is often limited to particular areas of public life, such as provision of goods or services, or education. In terms of government departments, it can often be quite difficult to establish whether or not their functions amount to a service. Australian anti-discrimination legislation, both at the federal level and at state level, limits the scope of anti-discrimination legislation to certain discrete areas of public life, including the provision of goods and services. Guidance on what exactly amounts to a service is fairly scarce, although, similar to the Canadian decision, the courts have reiterated that a broad, liberal interpretation should be favoured.
That the Canadian Tribunal overturned its own earlier decision demonstrates the complexity involved in determining what is a service, as well as showing that these concepts are by no means fixed. The Canadian Human Rights Tribunal may have chosen to depart from its earlier decision by choosing to focus on the effect of the decision rather than the process of making a decision. In Beattie the Tribunal chose to emphasise that where a decision results in certain benefits being conferred, it represents necessary work performed as a government service for the benefit of the public. This decision may put government decision makers on notice that the CHRA must be considered if the result of a decision involves the provision of government benefits and services.
In relation to family status, tribunals and the courts have held that the family status includes the relationship between adoptive parents and children and that adverse distinctions drawn between adopted and biological children are discriminatory on the basis of family status under the CHRA. This decision will affect the ability of parents to transmit their Indian status to children they have adopted by custom.
This decision is available online at: http://canlii.ca/t/g2kn0
Daniel D’Ambrosio is a Pro Bono intern at DLA Piper.