Whitfield v. Canadian Marconi Company

Supreme Court of Canada – [1968], 68 D.L.R. (2d) 766

Quebec Discrimination

Summary

This case is not related to aboriginal law per se, but shows how the social context surrounding aboriginal people was particular only not so long ago. A man was forbidden to engage in a relationship with an Aboriginal woman or he would lose his job – he did anyway, and lost his job, and lost his case.

Issue

Did the disposition prohibiting fraternizing and associating with Inuit and Crees in Whitfield’s contract violated his right to liberty and his freedom of assembly and association both protected by the Canadian Bill of Right?


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R. v. Kapp

Supreme Court of Canada – [2008] 2 S.C.R. 483

British Columbia Aboriginal rightsCanadian Charter of Rights and FreedomsDiscrimination

Summary

The Supreme Court confirmed that “preferential” measures towards Aboriginals in terms of fisheries (exlusive periods, for example) are valid and legal in Canadian law, and they do not violate the Canadian Charter of Rights and Freedoms.

Issue

Does the communal fishing licence granted under the Aboriginal Communal Fishing Licences Regulations violate the non-Aboriginal fishers’ equality rights protected by the Charter?


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McIvor v. Canada (Registrar of Indian and Northern Affairs)

Court of Appeal for British Columbia – 2009 BCCA 153

British Columbia DiscriminationIndian ActStatus

Summary

This case put an end to some discrimination between men and women in the application of the Indian Act.

Before, an Indian woman who married a non-Indian man lost her status, while an Indian man who married a non-Indian woman gave his wife the status. The Court confirms that corrections brought to this situation in 1985 by Parliament were not sufficient in putting an end to such inequality between men and women.

Issue

Do the provisions of section 6 of the Indian Act violate the Canadian Charter of Rights and Freedoms because of discrimination based on sex and marital status, and can Grismer’s children be entitled to Indian status even if their paternal grandfather and mother are non-Indian?


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The Queen v. Drybones

Supreme Court of Canada – [1970] S.C.R. 282

Northwest Territories Criminal lawDiscriminationIndian Act

Summary

This case deals with the discrimination that can result from the Indian Act. The Court here decides that the Act was discriminatory because it prevented Indians from doing what the rest of the population has the ability to do.

The decision was partially overturned four years later in the Lavell case.

Issue

Does s. 94 of the Indian Act, which provides that an Indian who is drunk outside of a reserve is guilty of a criminal offence, violate the Canadian Bill of Rights? Is it therefore inoperative?


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Attorney-General of Canada v. Lavell

Supreme Court of Canada – [1974] S.C.R. 1349

Ontario DiscriminationIndian ActStatus

Summary

The Lavell case is one of the first in a set of groundwork laid by Aboriginal women of Canada to obtain equality before the law. At the time, Indian women who married non-Indian men lost their status as a registered Indian, although the same was not true for men.

Although they lost this case, they continued the right until the McIvor decision in 2009.

Issue

Should s. 12 (1)(b) of the Indian Act, which provides that registered Indian women who marry non-Indians lose their status, be rendered inoperative because of discrimination contrary to the Canadian Bill of Rights?


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Attorney-General of Canada v. Canard

Supreme Court of Canada – [1976] 1 S.C.R. 170

Manitoba DiscriminationIndian ActSuccession

Summary

This ruling followed Lavell and Drybones regarding discrimination caused by the Indian Act. It incorporates the reasoning in Lavell that s. 91(24) of the Constitution Act, 1867, which grants the federal government jurisdiction over Indians, allows differential treatment between them and the rest of the population and permits the government to legislate regarding them in the sphere of general provincial jurisdiction.

In this case, the Court found that the application of the Indian Act falls under the discretionary power of the minister and allows an interpretation that does not distinguish between Indians and other Canadians. It confirmed the Federal Court’s jurisdiction to review such decisions and to apply the relevant provisions.

Issue

Was Canard’s estate subject to the provisions of the Indian Act and are ss. 42, 43 and 44 of the Act contrary to the Bill of Rights?


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Native Women’s Assn. of Canada v. Canada

Supreme Court of Canada – [1994] 3 S.C.R. 627

Ontario Canadian Charter of Rights and FreedomsDiscriminationNegociation

Summary

The Native Women’s Association of Canada asked to be treated in the same way as other native organizations in terms of financing and constitutional consultation.

The Court rejected its request, in part because women were also represented by the other organizations, and because NWAC does not represent all aboriginal women. The Court also noted that section 35 of the Constitution Act, 1982 does not give Aboriginals a right to be consulted in constitutional negotiations.

Issue

Does the Charter create an obligation for the federal government to allocate funding to Aboriginal women’s groups, equal to that given to their male-dominated counterparts, and is the federal government violating the Charter if it does not include a group representing Aboriginal women in the negotiations on constitutional reform?


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