Offending words in Indian Act struck out

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The Supreme Court of Canada has ruled that a part of Section 77 of the Indian Act violates the equality provision contained in Section 15 of the Canadian Charter of Rights and Freedoms.

Two questions were put to the Canada's top court when it was asked to decide the Corbiere case, in which the former chief of Ontario's Batchewana Indian Band, John Corbiere, claimed he, as a member of the band who resided off-reserve, should be allowed to vote in band elections.

To the first question - Do the words "and is ordinarily resident on reserve" contained in Section 77 (1) of the Indian Act contravene Section 15 (1) of the Charter, either generally or with respect only to members of the Batchewana band? - the court answered, "Yes, in their general application."

An even more direct and concise answer was given by the court to the second question - If the answer to question one is affirmative, is Section 77 (1) of the Indian Act demonstrably justified as a reasonable limit pursuant to Section 1 of the Charter?

The court's answer was one word - No.

Decoded into layman's language, the words mean that Native people who don't reside on reserve have the same right to vote in band elections as those band members who do reside on the reserve. Section 1 of the Charter guarantees basic rights and freedoms for all Canadians. One of those basic rights is the right to equal treatment and equal opportunity under the law. The court ruled that bands that refused to allow off-reserve members to vote were treating those members unequally and that Section 77 (1) of the Indian Act, which allowed bands to do this, placed an unreasonable limit on a basic right.

The court ruled that the offending words in the Indian Act will be struck out and ruled legally invalid. But the court has suspended that ruling for 18 months to give the government and the First Nations time to come up with legislation that doesn't violate the Constitution.

John Corbiere, the 64-year-old Batchewana Indian Band member first won a decision on the equality voting rights issue in the Federal Court of Canada in 1993. The band and the federal government took the case to the Federal Court of Appeal, lost again and then filed a final appeal with the Supreme Court of Canada. The loss there puts pressure on the federal government to change its policy id dealing with off-reserve people.

"I have to wonder who's going to enforce it," he told Sweetgrass. "They have the money and we're over here with the decision."

Corbiere was happy with the decision. He was able to attend a press conference in Ottawa shortly after the decision was handed down only because the Native Women's Association of Canada, an intervenor in his case, paid his way to the nation's capital. The legal battle has taken a financial toll on the Batchewana member. Wearied by his long legal battle, he didn't sound optimistic about how the government would respond to the decision.