Supreme Court of Canada Decision Disappointing for Equality Rights and Access to Justice in Canadian Human Rights Commission v. Attorney General of Canada, 2018 SCC 31.
On Thursday, June 14, 2018, the Supreme Court of Canada released its decision in Canadian Human Rights Commission v. Attorney General of Canada. The Women’s Legal Education and Action Fund (LEAF) and the Native Women’s Association of Canada (NWAC) intervened in this case to advocate for First Nations women’s access to justice.
LEAF and NWAC are disappointed that the SCC endorsed a narrow interpretation of the Human Rights Act, and the corresponding role of the Canadian Human Rights Tribunal, which will limit the capacity of First Nations women to challenge the sexist registration provisions in the Indian Act. Despite the longstanding and incredibly damaging nature of this discrimination, the SCC endorsed the finding of the Canadian Human Rights Tribunal that its statute does not allow it to consider challenges to the discriminatory registration provisions in the Indian Act, and has thereby closed an avenue for First Nations women and their families to achieve equality under the law.
The Decision under Appeal
The Appellants were two individuals who challenged the ongoing sex discrimination embedded in the Indian Act’s rules governing who can register for Indian status. The Canadian Human Rights Tribunal held that the proper venue to challenge the discriminatory denial of Indian status is not under human rights legislation, but under the Charter in a court of law.
The SCC found the Tribunal’s decision to be reasonable and upheld its finding that it did not have jurisdiction to consider the complaints.
LEAF and NWAC’s Intervention
LEAF and NWAC’s intervention argued that the Tribunal’s decision created significant barriers to access to justice and equality for human rights complainants, particularly First Nations women who experience sex discrimination under the Indian Act.
First Nations women have long been subject to sex discrimination under the registration provisions of the Indian Act, which has denied First Nations women access to services, benefits, and cultural identity and belonging. Virginia Lomax of NWAC states, “The significance of this discrimination cannot be understated. Various human rights bodies have confirmed that it is a root cause of the ongoing marginalization of First Nations women, including disproportionately high rates of incarceration, poverty, and violence. The government should eradicate this discrimination once and for all, but, failing that, the court system should seek to increase access to justice for First Nations women to challenge this discrimination, rather than erect barriers to human rights and equality protections.”
Historically, the Court system has failed to remedy this discrimination. LEAF and NWAC’s argument outlined the historic failure of the Court system in remedying this discrimination: First Nations women such as Mary Two–Axe Early, Jeannette Corbiere Lavell, Yvonne Bedard, Sandra Lovelace, Sharon Donna McIvor and more recently, Lynn Gehl were forced to engage in lengthy, expensive and difficult struggles for equality under the Indian Act, in the Canadian court system and at international rights bodies, none of which have eradicated the sexist registration rules altogether.
Karen Segal, counsel to LEAF, states “the SCC’s decision will continue to confine First Nations women to lengthy, expensive, and piecemeal complaints in the court system. We are disappointed that the SCC has cut off First Nations women’s access to a key venue to confront this discrimination, which will perpetuate sexism in the Indian Act and could ultimately have the effect of insulating discriminatory government legislation from human rights review.”
Notwithstanding this decision, LEAF and NWAC will continue their advocacy to promote equality for Indigenous women and girls and eradicate sex discrimination from the Indian Act once and for all. LEAF and NWAC wish to salute and offer gratitude to Jeremy Matson and his family for their determination and passion for equality. The time has now come for Canada to address the discrimination he and his family face under the Indian Act.
LEAF and NWAC’s factum is available here. LEAF is grateful to the counsel of Mary Eberts, alongside Kim Stanton of Goldblatt Partners and Virginia Lomax of NWAC, for their representation in this case.
Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has used litigation, law reform and public education to work toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit www.leaf.ca.
NWAC has been advocating for the rights and wellbeing of First Nations, Inuit, and Metis women in Canada since 1974. Through grassroots engagement, policy and legislative analysis, and litigation, NWAC advocates to preserve Indigenous women’s cultures, families, and communities by elevating their voices to the national and international level.
For media inquiries, please contact:
Karen Segal, Counsel
416 595 7170, ext 226
Virginia Lomax, Counsel