The Kahkewistahaw First Nation (KFN) in Saskatchewan spent 13 years developing an Election Code. During much of this time, Louis Taypotat was Chief. On February 18, 2011, the community was authorized to operate under its own Kahkewistahaw Election Act, the requirements of which included a grade 12 education for those running for Chief or Band Councillor.
After having been Chief of the Kahkewistahaw First Nation for most of the previous three decades, Mr. Taypotat, at the age of 76, was barred from running for Chief in the first election under the Kahkewistahaw Election Act in May 2011. Despite holding an honourary diploma from the Saskatchewan Indian Institute of Technology, Mr. Taypotat’s education did not equal a grade 12 level.
Mr. Taypotat challenged the constitutionality of the Grade 12 requirement on the basis that it has a disproportionate effect on older community members who live on the reserve, claiming that educational attainment is equal to discrimination based on race and age.
The case was heard first at the Federal Trial Court, then at the Federal Court of Appeal and finally at the Supreme Court of Canada. The decisions of the various courts are outlined below.
Federal Trial Court Decision:
Educational attainment is not equivalent to race and age because it is within an individual’s control, it deals with personal attributes rather than group characteristics, it distinguishes between members based on merit, and educational upgrading is available for those who wish to qualify.
Federal Court of Appeal Decision:
The education requirement does create a discrimination on the grounds of age and Aboriginality-residence. The provision excluded a large segment of electors of the KFN, an unequal number of which are elders and on-reserve residents, from elected public office within the community.
Supreme Court of Canada Decision:
Mr. Taypotat failed to show evidence proving the relationship between age or residency on a reserve with education levels in the KFN to prove discrimination against older community members or community members who live on the reserve.
The Court states that because the Kahkewistahaw Election Act requires the Chief and three of the four Councillors reside on the reserve during their term, members who live on the reserve are encouraged to participate in community governance as opposed to being discriminated against. Furthermore, the Court held that there was a lack of evidence connecting age and education from members of the KFN directly to establish discrimination based on age.
First Nations who are in the process of developing their own elections codes or in the process of revising existing election codes will want to consider whether or not their own codes comply with the Charter.