Ian Peach, “Section 15 of the Canadian Charter of Rights and Freedoms and the Future of Federal Regulation of Indian Status”

Working Abstract

The distinctions that the federal government makes among Aboriginal people on the basis of residency and racial background have been criticized and challenged under the Canadian Charter of Rights and Freedoms for being discriminatory and destructive of Aboriginal identity. If these distinctions are the subject of such strong and consistent criticism and have been the subject of several successful equality rights challenges, one must ask what alternatives are available that would reduce the amount of litigation on this issue and relieve the federal government of the burden of defending these legal challenges.

For the federal government, the obvious response is to repeal those sections of the Indian Act that define who is a status Indian, commit to providing all members of all Aboriginal communities with access to federally-funded programs, services and benefits and turn over responsibility for defining membership to Aboriginal communities themselves, as an exercise in political self-determination. The federal role would become a simple one of recognition of self-determined First Nations membership/citizenship rules, rather than the creation of rules to determine who is an “Indian”. There is nothing preventing the federal government from implementing this alternative approach now, without requiring the courts to force a federal response.

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