How important is community acceptance? For Canada’s First Nations peoples whose band governments are the gatekeepers to benefits and services, it might seem desperately important. Even if one self-identifies as being a member of a First Nation, there remains the question of whether they will be recognized as belonging to that community, such that they receive benefits and services provided under section 35 of the Constitution Act, 1982 and the Indian Act. While the Supreme Court of Canada has not explicitly affirmed the right to self-government as a freestanding right protected under section 35 of the Constitution Act, 1982, the court has affirmed elements that might comprise such a right. Other Canadian courts and tribunals have also produced a substantial body of case law in support of its existence.
In this essay, the author advocates for the use of a modified justificatory approach to assess whether a First Nation’s discriminatory membership code is justifiable under Canadian law. If the law purports to infringe on women’s equality rights, Canadian law should impose a limitation on a First Nation’s autonomy in order to protect these rights, as such discrimination cannot be justified in light of Canada’s historical context.