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Whither Section 25 of the Charter?

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Whither Section 25 of the Charter? Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter? Jennifer Koshan and Jonnette Watson Hamilton* Introduction responsibilities associated with self-govern- ment.”4 Seen in this light, the election code’s Th e Supreme Court of Canada has to date education requirement might have been treated delivered eight Charter equality decisions in an as a matter to be shielded from scrutiny under Aboriginal context.1 In the most recent case, Kah- section 25 of the Charter, which requires Char- kewistahaw First Nation v Taypotat, the Court ter rights to be interpreted so as not to derogate unanimously dismissed Louis Taypotat’s chal- from Aboriginal, treaty or other rights. However, lenge to his community’s election code require- the Kahkewistahaw First Nation did not make a ment that members of the First Nation running section 25 argument before the Supreme Court.5 for election as Chief or Band Councillor have a Grade 12 education or its equivalent. In fact, the Court has not dealt with sec- tion 25 since R v Kapp in 2008, and then it was Tay potat, aged 76, had previously held offi ce only the concurring judgment of Justice Basta- as Chief for almost thirty years in total, but he rache that fully explored the implications of the was disqualifi ed from running again in 2011 section.6 Given this lack of guidance, it is not because he did not meet the new education surprising that section 25 arguments are being requirement. He had attended residential school omitted in Charter litigation. until he was fourteen, and his education had been subsequently assessed at a Grade 10 level. We contend that the absence of a section 25 Before the Supreme Court, Taypotat argued that analysis in Taypotat was a missed opportunity, the community election code had an adverse particularly because Taypotat is the only sec- impact on him on the basis of his age, residency tion 15(1) decision of the Supreme Court with on a reserve, and status as a residential school an Aboriginal government as respondent.7 In the survivor.2 following part, we review the Court’s approach to section 25 and the potential application of sec- In rejecting Taypotat’s argument that the tion 25 in Taypotat. We conclude with a plea to community election code was discriminatory, litigators and the courts to move section 25 juris- the Court focused on the objectives behind the prudence forward. First Nation’s adoption of the education require- ment.3 It cited the Report of the Royal Commis- sion on Aboriginal Peoples to assert the idea that Section 25 of the Charter education is “a top priority for promoting col- lective and individual well-being in Aboriginal Taypotat and other section 15(1) cases that raise communities, and for helping those communi- challenges in the Aboriginal context present ties prepare to assume the complete range of unique considerations. Aboriginal peoples are Constitutional Forum constitutionnel 39 constitutionally recognized under section 35, Kapp, a section 15(1) claim by largely non- have concomitant collective interests, including Aboriginal fi shers against the government for group title to land and the right to self-govern- granting priority fi shing licenses to three First ment,8 and have been (and continue to be) sub- Nations. In his concurring opinion, Justice Basta- jected to the forces of colonization in ways that rache referenced legislative history, academic and distinguish them from other groups under the judicial commentary, and found that section 25 Charter.9 Section 15(1) claims engaging the col- was intended to serve as a shield rather than sim- lective interests of Aboriginal peoples may be ply as an interpretive provision, for the purpose brought by Aboriginal or non-Aboriginal per- of “protecting the rights of aboriginal peoples sons against Aboriginal or settler governments, where the application of the Charter protections and each combination of parties may give rise to for individuals would diminish the distinctive, diff erent considerations. More critically, Charter collective and cultural identity of an aboriginal claims in the Aboriginal context typically involve group.”15 He considered the scope of section 25, signifi cant cultural diff erences between the par- fi nding that the words “aboriginal, treaty or other ties and decision-makers,10 which raise profound rights or freedoms” should be interpreted broadly questions about the role of the courts and their so as to protect “federal, provincial and Aborigi- application of Euro-Canadian laws. nal initiatives that seek to further interests asso- ciated with indigenous diff erence from Charter Th is complex historical and socio-political scrutiny.”16 Justice Bastarache’s approach to the context is underscored in section 25 of the Char- application of section 25 involved three steps: ter,11 which provides that: Th e fi rst step requires an evaluation of the 25 Th e guarantee in this Charter of certain claim in order to establish the nature of the rights and freedoms shall not be construed so substantive Charter right and whether the as to abrogate or derogate from any aboriginal, claim is made out, prima facie. Th e second step treaty or other rights or freedoms that pertain requires an evaluation of the native right to to the aboriginal peoples of Canada including establish whether it falls under s. 25. Th e third step requires a determination of the existence (a) any rights or freedoms that have been of a true confl ict between the Charter right and recognized by the Royal Proclamation of the native right.17 October 7, 1763; and Applying this test to the priority Aboriginal fi sh- (b) any rights or freedoms that now exist by way of land claims agreements or may be so ery challenged in Kapp, he disposed of the claim acquired. on the basis that, although there was a prima facie case of discrimination under section 15(1), Th e fi rst section 15(1) case in which section the fi shing rights at issue were protected by sec- 25 was argued in the Supreme Court was Cor- tion 25 and the confl ict between those rights biere v Canada, a challenge to voting restrictions triggered the shield in section 25.18 on off -reserve band members under the Indian Act.12 An intervener, the Lesser Slave Lake Indian Justice Bastarache wrote only for himself in Regional Council, argued that section 25 should Kapp, and the majority raised some concerns shield a First Nation’s right to control its own about his approach.19 Chief Justice McLachlin membership (and by implication control who and Justice Abella took a narrower view of the was entitled to live on the reserve).13 A majority scope of section 25, suggesting that “only rights of the Court declined to apply the section, indi- of a constitutional character are likely to benefi t” cating that it “would be inappropriate to articu- from the section.20 Th ey also questioned whether late general principles” on section 25 in light of section 25 should operate as a shield rather the limited argument on the issue.14 than as an interpretive provision, indicating that “these issues raise complex questions of the Th e only Supreme Court decision in which utmost importance to the peaceful reconciliation section 25 has been dealt with at any length is of aboriginal entitlements with the interests of all 40 Volume 25, Number 2, 2016 Canadians . [and] are best left for resolution member-initiated challenges based on Char- on a case-by-case basis as they arise before the ter principles.”28 He was of the view that these Court.”21 types of challenges were necessary in order to break down colonial power structures imposed Although section 25 was not argued by the on Aboriginal communities.29 Th e application Kahkewistahaw First Nation in Taypotat at the of section 25 may therefore diff er depending on Supreme Court level, the Chief and Band Coun- who brings the claim against whom and when. cillors did place great emphasis on the First Nation’s collective adoption of the community On this point, the Federal Court of Appeal election code.22 Th ey noted that “[t]he provi- in Taypotat indicated that the education require- sion of education and establishment of schools ment improperly incorporated a Euro-Canadian on reserve were conditions insisted upon by model, calling into question the suitability of First Nations during the negotiations leading to the requirement and the applicability of sec- 30 the numbered treaties, including to Treaty 4, to tion 25. In response, the Chief and Councillors which the Kahkewistahaw First Nation became argued that the Court of Appeal showed “Euro- signatory in 1874.”23 However, they invoked Canadian bias” in this aspect of their reason- section 15(2), the Charter’s affi rmative action ing, noting that the Kahkewistahaw First Nation provision, to shield the code from a fi nding of took education and the establishment of schools discrimination, rather than section 25.24 In light seriously at the time of treaty negotiations and of the Court’s fi nding that there was insuffi cient has since expended considerable resources on 31 evidence to support a distinction based on a pro- education in the community. Th ey also argued tected ground, it did not deal with their section that the Court of Appeal’s view was based on 15(2) argument. Th e use of section 15(2) instead “the premise that only ‘Euro-Canadians’ value of section 25 may be a result of a lack of guidance education, when the history and facts relating from the Court on the latter provision, including to First Nations in general, and this First Nation 32 direction on when section 25 should be pled and in particular, demonstrate otherwise.” Th ese the consequences of doing so might be.
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