One Step Forward, Two Steps Backwards: How the Indian Act may restrict various marginalized groups from accessing justice

A recent case heard by the Supreme Court of Canada, Canadian Human Rights Commission v. Attorney General of Canada, may have significant implications for individuals who rely on federal government benefits. The case involves a challenge to the registration provision of the federal Indian Act.

Many members of the Indigenous community lost their Indian status due to “enfranchisement”.  The term was used both for those who give up their status by choice, and for the much larger number of Aboriginal women who lost status automatically upon marriage to Non-Status Indian men.[1] The Act was amended in 1985 and 2010 to permit persons to regain their status.[2] However, section 6 of the revised provisions limited the right of these persons to pass on their registration status to their children in some circumstances, such as when they have children with partners who do not have status.

This provision was challenged by the Matson and Andrews complainants, who argued that not being able to pass their registration entitlements to their children violated their human rights and constituted a discriminatory practice in the provision of services, contrary to s. 5 of the CHRA.[3]   According to section 5, “it is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public: (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.”[4]

Both complaints were dismissed by the Canadian Human Rights Tribunal (‘CHRT’) on the grounds that they did not relate to the provision of “services.”  One of the more troubling implications of the Tribunal’s decision is the fact that where claimants argue they have been excluded from receiving government benefits due to discriminatory but legislated eligibility criteria, there is no statutory human rights recourse, and a Charter challenge must instead be brought before the courts.[5]  

The Canadian Human Rights Commission filed a judicial review of both decisions, which were subsequently dismissed by the Federal Court.  The matter was then appealed to the Federal Court of Appeal, which reaffirmed the decision on the grounds that it was reasonable.[6] Leave to appeal to the Supreme Court of Canada was granted and the matter was heard before the Court on November 28^th, 2017.

Many indigenous and public interest groups across Canada intervened in this case, which is unsurprising given its significant implications for the access to justice rights of marginalized and disadvantaged groups.  According to Marie Chen of the Income Security Advocacy Centre (‘ISAC’), an intervener in the case, “income support programs play a critical and vital role in the lives of low-income individuals who are disproportionately protected groups such as people with disabilities, racialized people and women. When impoverished people are denied benefits provided by legislation because of discriminatory criteria, the consequences can be extremely detrimental. It is imperative that they have an effective remedy and meaningful access to human rights protection under the CHRA.” 

If the Supreme Court dismisses the appeal, low-income and other vulnerable people will be required to bring a Charter challenge in situations where they are challenging discriminatory federal legislation.  This is a costly process and may deter these persons from bringing forward a charter challenge in such circumstances.[7] This barrier may effectively immunize the government from human rights claims by people who can ill-afford to use the courts to assert their equal rights to access government programs.[8] 

Depriving individuals of the ability to challenge discriminatory legislation at the CHRT seems to contradict the intent and purpose of our human rights jurisprudence and is a step backwards in terms of all of the progress that has been made in the context of human rights and access to justice in Canada.  It will be interesting to see how the Supreme Court of Canada rules in this matter given the serious implications for marginalized groups. It is hoped that the decision will protect these groups and ensure that they will have the ability to access justice.

About the author