In Joseph v. Dzawada'enuxw (Tsawataineuk) First Nation, 2013 FC 974, APB volunteer lawyer Greg J. Allen of Hunter Litigation Chambers successfully represented some members of the Dzawada' Enuxw First Nation (the "Applicants") in their Federal Court judicial review of the Band Council's adoption of a new electoral code.

The Dzawada' Enuxw First Nation's (the "Band") reserve is located very remotely in Kingcome Inlet on the Central Coast of BC. The Applicants argued that the new electoral code discriminates against Band members living off-reserve by making it difficult for them to participate in band elections and governance, and by preventing off-reserve members from leading the Band Council. The judge agreed.

Justice O'Keefe found that the new electoral code further disenfranchises off-reserve members of the Band, and perpetuates the stereotype that they have less to contribute to their community than on-reserve members. He found this discrimination contrary to s.15 (the equality provision) of the Charter. He echoed previous judgments highlighting the importance of inclusion in Band affairs to aboriginal identity, regardless of whether a Band member lives on or off-reserve.

The Respondent in the case, the Band Council, argued that the changes in the electoral policy were justified to promote the valid goal of those governing the Band having a real, substantial and present connection to the community. The judge found that there was insufficient evidence to support the argument that off-reserve members lack a sufficient connection to the community. He further stated that discrimination against off-reserve members is especially unjustified when the great majority of Band members live off-reserve.

To read the full decision, click here.