Supreme Court of Canada –  2 S.C.R. 203
This case underlines the complexity of the Indian Act’s governance regime, and the great diversity between every band’s situations.
It was a victory for Indians living outside the reserve, who were suffering from discrimination in the band’s affairs.
Is Aboriginality-residence an analogous ground of discrimination according to the Charter, and, if so, can it constitute a reasonable limit in a free and democratic society and thus not be contrary to the Charter?
The section of the Indian Act that provides that members must be “ordinarily resident” in order to vote is discriminatory as applied to the Batchewana band (unanimous decision).
Between: the Crown of Canada as represented by the minister of Indian and Northern Affairs, Batchewana Indian Band
And: John Corbiere, Charlotte Syrette, Claire Robinson and Frank Nolan, each on their own behalf and on behalf of all non-resident members of the Batchewana Band
Interveners: Aboriginal Legal Services of Toronto Inc., Congress of Aboriginal Peoples, Lesser Slave Lake Indian Regional Council, Native Women’s Association of Canada and United Native Nations Society of British Columbia
The Batchewana Indian Band has three reserves around Sault Sainte Marie in Ontario, namely, the Rankin, Goulais Bay and Obadjiwan reserves, which occupy little land space.
In 1985, the rules of attribution of Indian status were changed by Bill C-31, amending the Indian Act. Indian women who married non-Indian men no longer lost their status. The new sections give status back to those who had lost it in the past and to their descendent. The Batchewana Band’s membership skyrocketed from 543 people to 1,426 in 1991. Before the amendment, 71.1% of the Band members resided on the reserve. In 1991, this percentage dropped to 32.8%. Most had no choice but to live off-reserve because the supply did not match the demand: lack of housing for the new members, limited financial resources, and cramped reserves.
This amendment also introduced the right for bands to have their council elected according to their customs if a majority of the electorate approves the measure in a plebiscite or a public meeting. The band can also choose to have its elections governed by the Indian Act. Section 77 (1) of the Indian Act provides that, for members to be able to vote in elections, they have to be “ordinarily resident” on the reserve.
John Corbiere resides on the Band’s Rankin reserve. Charlotte Syrette, Claire Robinson and Frank Nolan are all off-reserve members of the Band. They seized the Federal Court on their behalf and on behalf of all the Band’s off-reserve members for a declaration of the unconstitutionality of section 77 (1) due to it being in violation of the Canadian Charter of Rights and Freedoms.
Corbiere et al.: Section 77 (1) of the Act contravenes the Charter because Aboriginality-residence is an analogous ground of discrimination. The violation was not specific to the Band but undermined equality in the face of the legislation.
The Crown of Canada: Such an analysis would be improper because the case only considers one specific band.
Federal Court, Trial Division (1994): The denial of voting rights to non-resident Band members has negative consequences. The Band has had historical difficulties in establishing a firm land base, thus making it difficult for Band members who wanted to live on the reserve to do so. Most of the off-reserve Band members were women and their children who had been forced to leave the reserve before the adoption of C-31. Therefore, section 77 (1) violates the rights guaranteed by the Charter and the infringement is not justified. Section 77 (1) is invalidated for the Batchewana Band, and that declaration suspended for 10 months.
Federal Court of Appeal (1997): The judgment is upheld, but a constitutional exemption would be the suitable remedy since other bands could prove an Aboriginal right to restrict off-reserve members from voting. Section 77 (1) violates the Charter only with respect to the Batchewana Band. The declaration of invalidity was not suspended.
Lamer, L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache, Binnie
McLachlin and Bastarache (Lamer, Cory and Major): Aboriginality-residence is an analogous ground of discrimination because non-resident Aboriginal people are constantly victims of stereotyping due to this distinction from Aboriginal people living on the reserve. This discrimination touches an essential personal attribute. Denying non-residents the right to vote in the Band’s elections prevents them from raising issues that concern them to the elected council, which affects their human dignity.
This discrimination cannot be justified. It is not a minimal impairment of the right to equality as it has not been proved that an absolute refusal to allow off-reserve Band members to partake in the affairs of the Band through elections is necessary to protect the Band’s interests. A declaration of the invalidity of the words “and is ordinarily resident on the reserve” in section 77 (1) of the Indian Act applicable only to the Batchewana Band is an adequate reparation. The declaration is suspended for 18 months in order for Parliament to be given time to enact new legislation.
L’Heureux-Dubé (Gonthier, Iacobucci and Binnie): In agreement with her colleagues’ conclusions and remedy, yet a special system should be developed to ensure off-reserve members’ participation in the Band’s elections without necessarily giving them identical voting rights since their preoccupations differ from those of on-reserve Band members.
Federal government’s response
The Supreme Court gave the government until November 20, 2000 to redress the situation and discuss possible remedies with those affected by the decision. On December 9, 1999, the minister for Indian Affairs and Northern Canada (INAC) Robert Nault announced the government’s response to Corbiere: a two-stage process to modify the voting process enacted by the Indian Act.
First, in October 2000, there were the amendments to the two voting-related regulations under the Act, the Indian Band Election Regulations and the Indian Referendum Regulations to allow off-reserve band members to vote in council elections (Hurley, 2002). INAC then sought the opinions of Aboriginal communities and organizations in order to create a new electoral system that could respond to the needs of both on- and off-reserve band members. Some Aboriginal organizations were given funding to hold consultations in their communities.
Secondly, INAC launched the “Communities First: First Nations Governance Initiative,” a series of consultations intended to help to shape new legislation on Aboriginal governance (Aboriginal People, 2009). There was also the Joint Ministerial Advisory Committee which helped to draft the new legislation in light of the comments received during the consultations (Provart, 2003).
Since women and off-reserve Indians were the people most affected by the Corbiere decision and the subsequent changes to the Indian Act and its regulations, the National Aboriginal Women’s Association, a research group focusing on Aboriginal women’s issues, and the Congress of Aboriginal People, an organization representing the interests of off-reserve Indians, participated in the consultations held in 2000. Even though the two groups thought that the Act would not solve all the problems they faced, they agreed to be part of the Advisory Committee. The AFN, made up of the 633 band chiefs and mostly representing the interests of on-reserve Indians, spoke forcefully against the new legislation because it did not grant self-government to the Nations, and was thus inconsistent with the aspirations and priorities of members of First Nations. The AFN withdrew from the consultation process and created an alternative plan that suited more First Nations (Hurley, 2002).
Bill on First Nations Governance
In 2002, Bill C-7, the First Nations Governance Act, was introduced in Parliament. After the first reading, it was sent for review to the Standing Committee on Aboriginal Affairs, which held meetings with Aboriginal, church and legal organizations and First Nations leaders and individuals (Aboriginal People, 2009).
The First Nations Governance Act tackled the bands’ legal standing and capacity, their leadership selection, members’ voting rights, and the bands’ accountability to their members. First Nations members were divided in their opinions on the new legislation. The AFN and its provincial counterparts denounced the federal government’s action. In their view, the consultation process was deeply flawed, it threatened their inherent right to self-government, and it was not accompanied by concrete measures to counter social and economic problems faced by members of First Nations, such as poverty, access to on-reserve housing, health, and employment. By making bands financially accountable to their members and not to the government, the bands’ welfare spending increased without their having been given additional resources.
The Congress of Aboriginal People supported the Act because it finally gave off-reserve members a voice by giving them the right to participate in band elections. Women’s associations, such as the Native Women’s Association of Canada (NWAC) and the National Aboriginal Women’s Association, were also in favour of the Act since it would put an end to the band councils’ exemption from the Canadian Human Rights Act, thereby improving the living conditions of on-reserve women (Hurley, 2002).
Bill C-7 died on the Order Paper in November 2003.
The Act to amend the Canadian Human Rights Act was presented to Parliament in 2006, and in 2008 the exeption applicable to Indian Bands was abrogated (Imai, 2009).
In 2011, numerous legislations on Aboriginal governance were presented: a bill on self-government, one on the modification and replacement of the Indian Act, and one on elections within First Nations (LegisInfo, 2013). Bill S-6, the First Nations Elections Act, was sent for examination to the Standing Committee on Aboriginal Affairs in June 2013, after a second reading by the House of Commons (LegisInfo, 2013). The Atlantic First Nations and the Assembly of Manitoba Chiefs, supported by the ministry of Aboriginal affairs, initiated this bill. They undertook a discussion process throughout the country with Indian bands in order to modify First Nations’ electoral processes. The bill suggests longer mandates and new powers to elaborate by-laws regarding election (AANDC, 2011).
Attorney General of Canada v. Lavell,  S.C.R. 1349
Lovelace v. Ontario,  1 S.C.R. 950
Aboriginal People Congress of. 2009. CAP – Corbière Compliance. On-line. http://www.abo-peoples.org/CAP/Policy/Corbiere%20Compliance.html. Consulted July 21, 2009.
Aboriginal Affairs and Northern Development Canada (AANDC). 2011. Engagement Sessions on Bill S-6, First Nations Elections Act. Online http://www.aadnc-aandc.gc.ca/eng/1357834121253/1357834161691. Consulted August 5th, 2013.
Aboriginal Affairs and Northern Development Canada (AANDC). 2013. Attempts to Reform or Repeal the Indian Act. Online http://www.aadnc-aandc.gc.ca/eng/1323350306544/1323350388999. Consulted August 5th, 2013.
Federation of Saskatchewan Indian Nations. 2012. Saskatchewan Chiefs In Assembly Were Not Consulted By Member Of Parliament. In Media Releases. Online: http://www.fsin.com/index.php/media-releases/774-saskatchewan-chiefs-in-assembly-were-not-consulted-by-member-of-parliament.html. Consulted August 2013.
Hurley Mary C. 2002. Bill C-7: The First Nations Governance Act. Report prepared for Depository Services Programs by the Law and Government Division. On-line. http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/LS/372/372c7-e.htm#11. Consulted July 21, 2009.
Imai Shin. 2009. The 2009 Annotated Indian Act and Aboriginal Constitutional Provisions. Scarborough: Thompson Carswell.
LEGIS, Info. Online : http://www.parl.gc.ca/LegisInfo/Home.aspx?Language=F&Mode=1&ParliamentSession=41-1. Consulted August 5th, 2013.
Olthuis John, Kleer Nancy and Roger Townshend. 2009. Aboriginal Law Handbook. Scarborough: Thompson Carswell.
Provart John. 2003. Reforming the Indian Act: First Nations Governance and Aboriginal Policy in Canada in Indigenous Law Journal 2 (Fall 2003): 117-169.