The Supreme Court of Canada has upheld a Saskatchewan aboriginal community's requirement that candidates for chief or band councillor need to have a Grade 12 education.
A former chief of the Kahkewistahaw First Nation had challenged the requirement, saying that discrimination on the grounds of educational attainment is no different than discrimination on the basis of race or age. Louis Taypotat, 76, had been chief for 27 years, including much of the 13-year period in which the band held community discussions that led to the education requirement. He had been a student of Indian residential schools, and had the equivalent of a Grade 10 education. His nephew, Sheldon Taypotat, was acclaimed chief in 2011.
The Federal Court of Appeal had ruled that the Grade 12 requirement amounted to unintentional discrimination because it harmed older members and on-reserve members. Both groups tended to lack education, it said.
But the Supreme Court, in a unanimous ruling written by Justice Rosalie Abella, said there was no statistical evidence about educational attainment among members of the band.
The band had argued that education is key to aboriginal peoples improving their lives, and that the requirement should not be seen as discriminatory because its members are free to go out and get a Grade 12 equivalency.
The Supreme Court was critical of the Federal Court of Appeal ruling, whose three members were the former chief justice, Pierre Blais, Justice Robert Mainville, who was a contender for the Supreme Court in 2013, and Justice David Near. Justice Abella said the appeal court had, on its own, raised the issue of age and residency on the reserve, and that it had done so improperly. She called the appeal's court decision to raise the issue of residency on its own "particularly troubling" because it has never been identified as a ground of discrimination in previous Charter of Rights rulings.