Supreme Court of Canada Upholds Candidate Education Requirement in First Nations Election Code

The Supreme Court of Canada has upheld first nations election code that required all candidates who wished to be Chief or a Band Councillor to have a Grade 12 education.

Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (CanLII)

The Kahkewistahaw First Nation’s election code came into force in 2011, and it included the requirement that all candidates have a Grade 12 education. This requirement was challenged by a former Chief, who only had a Grade 10 education.

The Grade 12 requirement was challenged on the grounds that it contravened section 15(1) of the Canadian Charter of Rights and Freedoms, according to which “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

The current section 15(1) analysis is to do a “flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group”.

After conducting its analysis, the Supreme Court found that there was no evidence before them that would point to any link between the education requirement and a disparate impact on the basis of an enumerated or analogous ground.

While this case seems to mean that First Nations election codes can impose an education requirement on prospective candidates, it may have little value as a precedent for other cases as it was decided on a lack of evidence. If there is evidence that an education requirement has the affect of arbitrarily disadvantaging an enumerated or analogous group, it could be in contravention of section 15(1).

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