[2014] 1 F.C.R. D-5
Aboriginal Peoples
Elections
Appeal from Federal Court decision (2012 FC 1036) dismissing appellant’s judicial review application seeking, inter alia, to invalidate certain provisions of Kahkewistahaw Election Act requiring that candidate in election having attained minimum education level—Appellant, 74, member of Kahkewistahaw First Nation (First Nation) entire life—Elected Chief of First Nation for 27 years—In last election for chief held according to Indian Act, R.S.C., 1985, c. I-5, appellant losing marginally to nephew—First Nation eventually selecting membership pursuant to own community election code—New community election code setting minimum education requirement as eligibility for public office—Appellant not meeting minimum educational requirements—Federal Court finding Kahkewistahaw Election Act validly adopted even though absolute majority of eligible electors of First Nation not participating in ratification vote, not ratifying vote—Principal issue whether impugned provisions of Kahkewistahaw Election Act violating principle of equality set under Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15(1)—Federal Court having view that since impugned provisions of Kahkewistahaw Election Act distinguished on basis of education, no discrimination existing under Charter, s. 15(1) since distinction made “on basis of merit, capacities”—However, Federal Court’s analysis incomplete—Educational requirement may in certain circumstances be disguised way of discriminating on basis of enumerated ground (i.e. age, Aboriginality-residence)—Where educational requirement having effect of excluding persons on basis of age or Aboriginality-residence, where no appropriate justification for such requirement, court may conclude that requirement discriminatory—In present case, impugned provisions of Kahkewistahaw Election Act creating distinction that discriminates on basis of both age, Aboriginality-residence—Education gap within on-reserve Canadian Aboriginal population well documented, specifically referred to by appellant in material submitted for application—Moreover, education gap between older, younger Canadians also well-known—Impugned provisions of Kahkewistahaw Election Act requiring Grade 12 education consequently disenfranchising very large segment of electors of Kahkewistahaw First Nation from elected public office within First Nation—Moreover, disproportionate number of elders, on-reserve residents affected by disenfranchisement—Therefore, impugned provisions of Kahkewistahaw Election Act imposing minimum education requirement to run for public office violating Charter, equality provisions of s. 15(1), principle of equality in Kahkewistahaw Election Act itself—Appeal allowed.
Taypotat v. Kahkewistahaw First Nation (A-427-12, 2013 FCA 192, Mainville J.A., judgment dated August 13, 2013, 27 pp.)