Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination

• Published in: The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
• Main Authors: Hamilton, Jonnette Watson, Koshan, Jennifer
• Format: Text
• Language: unknown
• Published: Osgoode Digital Commons 2016
• Subjects: Law; Canada; First Nations; inuit
• Online Access: https://digitalcommons.osgoode.yorku.ca/sclr/vol76/iss1/11; https://doi.org/10.60082/2563-8505.1336; https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1336/viewcontent/ch11_hamilton_koshan.pdf

The Royal Commission on Aboriginal Peoples (“RCAP”) acknowledged education as essential to both enhancing the lives of Aboriginal individuals and achieving their collective goals. Education can improve the capacities and talents of Aboriginal citizens to assume the responsibilities of operating self-governing and community structures. In Kahkewistahaw First Nation v. Taypotat, these 20-year-old conclusions were the focus of the first paragraphs of both the factum of the Chief and Council of the Kahkewistahaw First Nation and the unanimous judgment of the Supreme Court of Canada. Education was also a key component of a more recent commission, the Truth and Reconciliation Commission of Canada (“TRC”). Its inquiry into Canada’s residential schools confirmed that “the residential school system was an education system for Aboriginal children in name only for much of its existence.” Indeed, in their 2012 Interim Report, the TRC concluded that “[r]esidential schools constituted an assault on self-governing and self-sustaining Aboriginal nations,” because “one of the most far-reaching and devastating legacies of residential schools has been their impact on the educational and economic success of Aboriginal people”. The TRC’s finding that “the lowest levels of educational success are in those communities with the highest percentages of descendants of residential school Survivors: First Nations people living on reserves, and Inuit” is significant for the issues in Taypotat. These findings also illustrate that, for Aboriginal people, education cannot be understood simply or necessarily as positive.