iPolitics: The Charter at 35: There are winners and losers in the fight for rights
“As far as the Charter itself and the impact it’s had so far, not a lot to be quite honest,” says David Milward, an aboriginal law professor at University of Manitoba. He notes that only a few charter decisions have had an impact on the Indigenous community.
While there have been several monumental Supreme Court decisions involving First Nations, many have been argued using Section 35 of the Constitution, which recognizes and affirms “existing aboriginal and treaty rights.” The section is not part of the charter.
An exception, however, is the charter gains secured by indigenous women, who successfully invoked the charter to challenge provisions of the Indian Act that entitled them to inferior rights and status than men.
Another significant charter decision came in 1999, when the Court ruled that it violated the equality rights of off-reserve aboriginals to not allow them to vote in band elections.
While the charter “prevents governments from doing things are completely outrageously discriminatory,” says Milward, the social issues facing aboriginals are “too profound” to be settled by a code of rights,” he says.
He predicts future charter clashes pitting individual rights against aboriginal self-government.
“What if aboriginal individuals want to assert their charter rights against their own aboriginal governments?” he asked. “Aboriginal governments might say they’re using traditional governance and the charter has no application and reflects a different world view, but in turn does that give Aboriginal governments a license to step over established tyranny where aboriginals have no real regress?”
For example, he said, Canadians have a charter right to silence, while aboriginal societies have ‘true speaking’ traditions, where they must speak truth to the elders.