Federal Appeal

Aboriginal Peoples

Distinction impeded full political membership for many elders and reserve residents

Pursuant to Indian Act (Can.) (“IA”), Minister revoked order that Chief and Council of Kahkewistahaw First Nation (“KFN”) be selected through elections in accordance with IA, thereby allowing KFN to adopt community election code. Kahkewistahaw Election Act (“KEA”) provides that candidate for chief or councillor must have minimum Grade 12 education or equivalent. Appellant evaluated at Grade 10 level and his nomination as candidate for chief not certified. Respondent elected chief by acclamation and other respondents declared elected as councillors. Appellant’s application for judicial review, seeking declaration that impugned provisions of Act invalid, that respondents be removed from office and that new elections be held, dismissed but appellant’s appeal allowed. Charter applies to council of KFN and election process through which council members elected. Fact that Minister took measures to allow KFN to adopt community election code did not result in repudiation of Charter scrutiny. As citizens of Canada, aboriginal peoples entitled to protections and benefits of rights and freedoms set out in Canadian Charter of Rights and Freedoms. Impugned provisions of KEA violated principle of equity under s. 15(1) of Charter and reiterated in KFN’s community election code. Evidence established that even if education excluded as analogous ground of discrimination, education requirement at issue created distinction resulting in discrimination on enumerated ground of age and analogous ground of aboriginality-residence. Impugned provisions disenfranchised large segment of electors of KFN from elected public office and disproportionate number of elders and on-reserve residents affected. Distinction impeded full political membership in community for many elders and reserve residents, perpetuating prejudice against these persons and attacking their sense of self-worth. It also perpetuated stereotyping that did not correspond to actual abilities. Infringement not justified under s. 1. While encouragement of educational achievement by aboriginal peoples was pressing and substantial objective, no rational connection between objective and disenfranchisement of large part of community from elected public office. Impugned provisions violated s. 15(1) of Charter. No evidence any candidate for councillor rejected on basis of impugned provisions so new elections for councillor not required. Since appellant precluded from running for chief on discriminatory ground, new elections for that position must be held.

Taypotat v. Taypotat (Aug. 13, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J., and D.G. Near J., File No. A-427-12) Decision at 221 A.C.W.S. (3d) 2 was reversed.  230 A.C.W.S. (3d) 623.

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