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Aboriginal Law - Aboriginal status and rights - Aboriginal status - Entitlement to status - Aboriginal descent or ancestry - Constitutional issues - Non-status aboriginals - Practice and procedure - Courts - Jurisdiction

Thursday, September 15, 2016 @ 8:00 PM  


Appeal by the Canadian Human Rights Commission from the dismissal of its applications for judicial review of decisions by the Canadian Human Rights Tribunal. Members of two First Nations complained to the Tribunal that provisions of the Indian Act preventing them from registering their children as Indians under the Act violated their human rights, as the impugned provisions of the Act constituted prohibited discrimination on the basis of race, national or ethnic origin, sex or family status. The provisions originally differentiated in status entitlement between individuals whose enfranchised forbearer was a man or a woman. When amended in 1985 in an attempt to address this inequity, the provisions ultimately resulted in differential treatment of certain individuals based on the timing of their parents’ re-enfranchisement and differential treatment of their children. The Tribunal dismissed the complaints because they involved a direct challenge to the provisions of the Act and did not allege a discriminatory practice, as the adoption of legislation was not a service customarily available to the general public. The Tribunal ruled that the challenge to the impugned provisions could only be brought under section 15 of the Canadian Charter of Rights and Freedoms and therefore needed to be made to a court of law. The Commission filed judicial review applications with respect to the Tribunal’s decisions. The Federal Court upheld the Tribunal’s decisions as reasonable.

HELD: Appeal dismissed. The importance of the issues the First Nations members sought to have determined did not mandate a review of the Tribunal’s decision on the standard of correctness. Reasonableness was the appropriate standard of review. The Tribunal’s decisions withstood a reasonableness review. The Tribunal was entitled to characterize the complaints as direct challenges to provisions of the Indian Act, rather than challenges to the way in which the provisions were applied. The complainants sought to expand the statutory grounds for the grant of Indian status by arguing the legislation was impermissibly under-inclusive. They were not seeking review of the manner in which administrators had applied the provisions in their particular circumstances. They were not merely seeking to have the impugned provisions declared inoperative in their circumstances. Just because the Tribunal had power to declare legislative provisions inoperative, that did not mean it could challenge and overturn legislation itself. There was no reason to find the Tribunal should be an alternate forum to the courts for adjudicating issues regarding the alleged discriminatory nature of legislation, where a challenge could be made to the court under section 15 of the Charter.