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Canadian Human Rights Tribunal cannot challenge discrimination in Indian Act: Supreme Court

The Supreme Court of Canada says the Canadian Human Rights Tribunal was correct in deciding it does not have the jurisdiction to consider whether Canadian laws are discriminatory, a decision that comes as the government launches consultations to remove sexism from the Indian Act.

The top court on Thursday dismissed a challenge of tribunal decisions brought by the Canadian Human Rights Commission on behalf of two families who could not pass their Indian status on to their descendants because of discriminatory policies in the Act.

The Tribunal said in rulings in those cases that it could decide whether government services had been distributed unfairly but does not have the power to consider direct challenges to legislation because legislation is not a service. The decision was later upheld by the Federal Court and the Federal Court of Appeal.

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In a decision written by Justice Clément Gascon, the Supreme Court found that the tribunal and the courts were right to dismiss the challenges.

“The adjudicators reasonably concluded that the complaints before them were properly characterized as direct attacks on legislation,” Justice Gascon wrote, “and that legislation in general did not fall within the meaning of ‘services.’”

The Supreme Court did not rule on whether parts of the Indian Act are discriminatory and Justice Gascon made it clear that the original complainants in the case could still challenge the Indian Act under the Charter of Rights and Freedoms, as the Human Rights Tribunal said in its own ruling.

The Canadian Human Rights Commission said it was disappointed in the Supreme Court decision which, it said, limits Canadians’ access to human-rights justice.

“It closes doors for vulnerable people who need to fight for their rights, leaving them to fend for themselves in a civil court system that is increasingly complex and expensive,” Chief Commissioner Marie-Claude Landry said.

The case before the Supreme Court originated with two families, the Matsons and the Andrews, who said the Department of Indian and Northern Affairs Canada (which has since been split into two departments) discriminated against them by not allowing them to pass along Indian status to their children.

The Matson siblings’ grandmother lost her status, and the status of her descendants, when she married a non-status man. Although a subsequent change to the Indian Act allowed them to obtain status, they could not pass it along to their children. That would not have been the case had their grandmother not lost her status in the first place.

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In the case of Roger Andrews, his father voluntarily gave up his status, which meant his children did as well. Although Mr. Andrews eventually gained status after a change in the legislation, he is still not allowed to pass it along to his daughter.

The Matson case is similar to situations that are currently being explored by the government as it begins the process of removing known sex-based discrimination from the Indian Act.

Status under the Act allows a registered Indian to access some government services, such as supplemental medical and dental care.

Earlier this week, the government announced that Claudette Dumont-Smith, a former executive director of the Native Women’s Association of Canada, has been appointed by Carolyn Bennett, the Minister of Crown-Indigenous Relations, as a special representative in what is expected to be a multiyear consultation on Indian registration, band membership and First Nations citizenship.

That process became necessary when the Senate refused to pass government legislation, drafted to meet a ruling of a Quebec court, that eliminated some of the sex-based discrimination in the Indian Act but left other sexist elements in place.

After a showdown with senators that lasted several months, the Liberal government promised to eventually take the sexism out of the Act, but only after a consultation with First Nations. Ms. Dumont-Smith has until next June to report back to Parliament.

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