October 8, 2015 By: Alex Keenan
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A recent decision by the Supreme Court of Canada explored some of the tensions faced by First Nations in establishing policies aimed at defining the qualifications of their leaders.

In Kahkewistahaw First Nation v. Taypotat, the Court addressed potential discrimination in the community election code adopted by the Kahkewistahaw First Nation. After 13 years of community consultation, Kahkewistahaw adopted the Kahkewistahaw Election Act, which required all candidates for Chief and Council to have at least a Grade 12 education.

Louis Taypotat was the Chief of Kahkewistahaw for 27 years and held that office during much of the consultation process for the new election code. However, when he tried to run for Chief in 2011, his candidacy was refused because he had only completed Grade 10. His legal challenge to the Kahkewistahaw Election Act made its way to the Supreme Court of Canada.

Mr. Taypotat argued that the education requirement violated the equality guarantee found in section 15 of the Canadian Charter of Rights and Freedoms, because it had an unequal impact on older members of the community who lived on the reserve.

For a law to violate section 15 of the Charter, it must make a distinction between people based on one of the “enumerated grounds” of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, or on an “analogous ground”.

Analogous grounds are personal characteristics that, like those listed above, tend to be very personal, difficult to change, and linked to various disadvantages in society. In Corbiere v. Canada, the Supreme Court found that residence off-reserve was an analogous ground because, for many First Nations people, the choice to live off-reserve – if it is a choice at all – is not made entirely freely, and it comes with certain disadvantages that those living on-reserve do not face.

Furthermore, a distinction based on an enumerated or analogous ground will only violate the Charter if its effect is to reinforce, perpetuate or increase a disadvantage faced by people with that characteristic.

A law that appears neutral may be discriminatory if it has a more severe impact on members of one group than on others. In this case the Court accepted that a minimum education requirement may place unfair barriers in front of potential candidates who have not had equal access to education, due to their age or to living on reserve, or both. In fact, the Court noted that research has shown that older Canadians, and especially older indigenous Canadians, tend to have lower levels of education than do their younger counterparts.

However, the Court was not prepared to draw conclusions about a specific community from country-wide data. It needed evidence that the Kahkewistahaw Election Act unfairly prevented certain members of the community from running for office based on an enumerated or analogous ground. Mr. Taypotat had not provided sufficient evidence that living on reserve was an “analogous ground” or that older, on-reserve members of the Kahkewistahaw First Nation were less likely to have a Grade 12 education. Without this evidence, the Court could not find that there had been discrimination.

The Kahkewistahaw decision does not break new ground in Canadian law. Rather, it helps to illustrate some of the challenges faced by First Nations and their citizens in shaping (or challenging) their own democratic institutions. Communities must be aware of hidden discrimination in their laws, which could be socially damaging and expose the community to litigation.

None of this is to say that First Nations cannot, or should not, exercise their right of self-government and pass laws to protect the things that matter to them. Even a discriminatory law may be constitutional if it serves an important purpose for the community, discriminates as little as possible, and provides benefits that outweigh the negative impacts.

The point is that these issues are worth discussing – and as indigenous communities reclaim more and more responsibility for their own affairs such discussions are becoming ever more necessary.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Indigenous Law