Federal Court Invalidates Discriminatory Band Membership Code

OUTCOME: Allowed

Date: 20260401 Docket: T-1785-23 Citation: 2026 FC 425 Ottawa, Ontario, April 1, 2026 PRESENT: The [NAME_1]: [NAME_2] [NAME_5] Applicants and CANADA ([COMPANY_8]) AND [NAME_10] Respondents

JUDGMENT AND

REASONS [ 1 ] The Applicants, [NAME_2] and [NAME_5], by way of an application for judicial review, challenge the decision of the Respondent, [NAME_16] [[NAME_17]], to enact [NAME_16] [NAME_19] [[NAME_19]]. The Applicants claim that the [NAME_19] was enacted contrary to the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), c 11 [ Constitution Act, 1982 ] , and my judgment in [NAME_20] v [NAME_10] , 2022 FC 969 [ [NAME_20] ]. Background/General Overview [ 2 ] It is agreed by the parties and has been recognized in jurisprudence that prior versions of the Indian Act , RSC 1985, c I-5 discriminated against Indigenous women, including by providing that if an Indian woman married a non-Indian man, the woman would lose her Indian status. Conversely, if an Indian man married a non-Indian woman, he retained his Indian status (and his wife also became entitled to that status). Amendments to the Indian Act made in 1985, through Bill C-31, An Act to Amend the Indian Act , 1st Sess, 33rd Parl, 1985 [1985 Amendments], were an attempt by Canada to eliminate discrimination based on sex and be Charter compliant. The 1985 Amendments, among other things, permitted women previously discriminated against to regain their lost status. Further amendments to the Indian Act were made in 2011 and 2017 responding to jurisprudence which found that the discrimination based on sex was not resolved by the 1985 Amendments (Bill C-3, Gender Equity in Indian Registration Act , 3 rd Sess, 40 th Parl, 2011; Bill S-3, An Act to amend the Indian Act in response to the Superior Court of [NAME_21] decision in [NAME_22] c. Canada (Procureur g é n é ral ) , 1 st Sess, 42 nd Parl, 2017. [ 3 ] The 1985 Amendments also permitted Indian bands, for the first time, to determine their own membership, which had previously been determined by Canada. Specifically, section 10 of what is now the Indian Act permits a [NAME_23] to assume control of its own membership if it establishes written membership rules and if a majority of the electors of the [NAME_23] give their consent for the [NAME_23] to control its own membership. Pursuant to subsection 9(2) of the Indian Act , the names in a [NAME_23] of a [NAME_23] immediately prior to April 17, 1985, constituted the [NAME_23] of that [NAME_23] on April 17, 1985. And, pursuant to subsection 10(4) of the Indian Act , membership rules established by a [NAME_23] under section 10 could not deprive any person who had the right to have their name entered on the [NAME_23] for that [NAME_23], immediately prior to the time the rules were established, of the right to have his or her name so entered by reason only of a situation that existed or an action that was taken before the rules came into force. [ 4 ] On or about June 17, 1987, the [NAME_17] assumed control of its [NAME_23] membership under section 10 of the Indian Act, and enacted the [NAME_24] [1987 Membership Code]. [ 5 ] The membership provisions in the 1987 Membership Code were based on the membership provisions contained in the 1985 Amendments. In [NAME_20], I addressed this as follows: [ 7 ] The parties agree that the 1987 Membership Code is problematic. The membership criteria in the Code are based on provisions of the Indian Act , as they existed following amendments made to the Act in 1985, which provisions have been found not to comply with the Canadian Charter of Rights and Freedoms [ Charter ] because they perpetuated discrimination (see [NAME_25] v Canada (Registrar of Indian and Northern Affairs),  2009 BCCA 153 [ [NAME_25] ] at paras 117, 151; [NAME_22] c Canada (Procureur Général), 2015 QCCS 3555 [ [NAME_22] ] at paras 155, 171, 217-218). The crux of the discrimination identified in [NAME_26]  was that the 1985 amendments to the Indian Act perpetuated the advantage of those who gained Indian status through male ancestors, rather than through female ancestors ( [NAME_25]  at paras 93, 111-112, 122, 154-156; [NAME_22] at paras 133-134, 149-155, 167-171). Amendments to the Indian Act subsequent to the enactment of the 1987 Membership Code, enacted in response to [NAME_26] , have expanded eligibility for Indian status. [ 6 ] Apparently in recognition of these decisions and legislative changes, on June 15, 2016, the [NAME_17] held a referendum for the purpose of deciding whether to repeal the 1987 Membership Code and replace it with [NAME_16] [2016 Membership Code]. Although after the referendum it was understood that the 2016 Membership Code was in force, the 1987 Membership Code was utilized with respect to an election held in 2020. Ultimately, in [NAME_20] , I determined that the 2016 Membership Code had not been validly adopted as it was not compliant with the amending provisions of the 1987 Membership Code which required “a majority of a majority” for ratification. This meant that the 1987 Membership Code remained in force; its constitutionality was challenged. [ 7 ] In [NAME_20] , the parties agreed that the 1987 Membership Code essentially served to freeze in place the provisions of the Indian Act as they existed in 1987 (the 1985 Amendments) and that those provisions were subsequently found to be unconstitutional. I agreed with the parties and, therefore, held that the 1987 Membership Code discriminated against the applicants and other [NAME_17] community members on the basis of sex, contrary to section 15 of the Charter . [ 8 ] As to remedy, I found the 1987 Membership Code, which was a very brief document, to be constitutionally non-compliant and declared it invalid. However, the declaration of invalidity was suspended for 12 months. I did not set aside the 2020 election but held that if the [NAME_17] had ratified a new membership code on or before June 29, 2023 (12 months from my decision), then, on or before the day that was 3 months from the date of ratification of the new membership code, a new election would be held. For the purposes of that election, the [NAME_17] membership would be determined by the new membership code. If the [NAME_17] had not ratified a new membership code on or before June 29, 2023, then Chief and Council would, on that date, give notice in writing to the Minister that the [NAME_17] no longer has a membership code and, therefore, no longer met the criteria of subsection 10(1) of the Indian Act . Control of the [NAME_17]’s [NAME_23] would be deemed to have been returned to the Department of Indigenous Services upon the giving of that notice. Also on June 29, 2023, a new election would be called by Chief and Council to be held within three months of that date. The [NAME_17] membership for the purposes of that election would be determined pursuant to section 11 of the Indian Act  and the [NAME_23] maintained by the Department of Indigenous Services. [ 9 ] On June 2, 2023, the [NAME_17] ratified and enacted the [NAME_19]. As will be discussed in greater detail below, the [NAME_19] provides for an automatic right of citizenship to the [NAME_27] if: they are registered under the Indian Act as a status Indian; they are listed under the [NAME_17] on the [COMPANY_8] [[NAME_28]] [NAME_23] or Indian Registry; and, they are registered on the existing [NAME_29] of the [NAME_17] and met the first two criteria as of the date that the [NAME_19] was passed. In effect, those [NAME_27] who were previously recognized as [NAME_27] under the 1987 Membership Code would automatically retain that status under the new [NAME_19] . [ 10 ] For others who wish to become citizens, a citizenship application and acceptance process is set out in the [NAME_19]. Subject to the terms and provisions of the [NAME_19], a person who was not on the [NAME_29] when the [NAME_19] came into effect may be eligible to be enrolled as a citizen if: they submit an application; are a direct descendant of an original [NAME_23] Member for the [NAME_17] who was alive on September 19, 1906, at the time of entering Treaty 10; and, are registered on the [NAME_28] [NAME_23] or Indian Registry maintain by [NAME_28]. In addition, specified criteria are set out which are to be considered by a [NAME_30] when making a recommendation to Council with respect to the application for citizenship. Council may accept or reject those recommendations, taking into consideration listed factors which primarily pertain to resources available to the [NAME_17]. If citizenship is recommended and is accepted by Council, then Council may impose a period of probationary and conditional citizenship for up to two years [Probationary Period] as set out in section 12.01. Following the Probationary Period and if citizenship is granted then, for the next five years, the citizenship rights of new citizens are restricted [Restricted Rights Period], as set out in section 12.02, during which they are not eligible to run for public office or receive per capita distribution payments, funding or services in relation to housing . [ 11 ] The Applicants assert that, because of the discriminatory provisions of the Indian Act , they did not have status under the Indian Act and, therefore, were not on the [NAME_28] maintained [NAME_23] when the 1987 Membership Code came into effect. And, because the 1987 Membership Code adopted the discriminatory provisions of the Indian Act as they existed in 1987 , the Applicants were not eligible for membership under that Code. The Applicants both later regained their status. [ 12 ] In this application, the Applicants allege, in essence, that the reason they are not automatically eligible for [NAME_17] membership under the [NAME_19] is that the 1987 Membership Code was based on the past discriminatory provisions of the Indian Act, preventing them from being included on the [NAME_23]. They seek to have this Court declare the whole of the [NAME_19] unconstitutional and of no force and effect as it discriminates on the basis of sex in violation of section 15 of the Charter, which discrimination is not justified by section 1 of the Charter . They submit that the [NAME_19] maintains the same discriminatory distinctions that impaired the rights of the Applicants under the 1987 Membership Code. [ 13 ] They also seek a declaration that the [NAME_19] violates section 35 of the Constitution Act, 1982 and is therefore of no force and effect by virtue of section 52. On February 19, 2026, after the parties had filed their written submissions, the Applicants filed a Notice of Constitutional Question. The Notice does not actually identify specific questions. It states that the questions are to be argued at the hearing and sets out nine paragraphs described as the material facts giving rise to the constitutional question. It also set out what it describes as the legal basis for the constitutional question including:

10. The Applicants challenge the validity and effect of the [NAME_19] on the basis that the law as a whole, and Sections 7, 8, 9, 12, 15, 18, 19 and 21 in particular, operate to create a two-tier system of citizenship that is discriminatory contrary to Sections 15 and 28 of the Charter and is also unconstitutional under Section 35(4) of the Constitution Act, 1982 . [ 14 ] The Notice then goes on to discuss the application of the framework from [NAME_32] v [NAME_33] , 2024 [NAME_94] 10 [ [NAME_32] ] and to assert other legal basis of its constitutional challenge. Legislation [ 15 ] The provisions of the legislation relevant to this matter are set out in Schedule A of these reasons. That legislation is the Indian Act , the Charter , the Constitution Act, 1982 and the [NAME_19] . Issues [ 16 ] The Applicants submit that the issues before me are: Whether the [NAME_19] discriminates based on gender or analogous grounds, contrary to section 15 of the Charter ? If so, is the discrimination saved by section 1 of the Charter ? If not, what is the appropriate remedy? [ 17 ] The [NAME_17] submits that in addition to the issues identified by the Applicants there are three other issues: A preliminary issue, being whether the Applicants failed to exhaust the administrative remedies available to them. If so, that is determinative; No Aboriginal Rights are breached by the [NAME_19]; and Whether section 25 of the Charter shields all non-gender claims. [ 18 ] With respect to the issue of whether the [NAME_19] discriminates based on gender or other analogous grounds contrary to section 15 of the Charter and, if so, whether the discrimination justified pursuant to section 1 of the Charter , Canada submits that it supports the application of the Charter to Indigenous governing bodies and the laws they enact, including the [NAME_19]. Canada defers to the Indigenous parties’ submissions regarding the application of the Charter to the [NAME_19]. Canada takes no position on the appropriate remedy to be applied by the Court should it determine that the [NAME_19] is contrary to section 15 of the Charter . However, Canada does take issue with the remedy sought by the Applicants. [ 19 ] In my view, the issues that arise on this application can be framed as follows: Preliminary issue – whether the Applicants failed to exhaust the administrative remedies available to them. Does the [NAME_19] discriminate based on gender or analogous grounds, contrary to section 15 of the Charter? If so, does section 25 of the Charter act as a shield? If there is a breach of section 15, which is not shielded by section 25, is the breach justified under section 1 of the Charter? If not, what is the appropriate remedy? Section 35(4) Standard of Review [ 20 ] The parties make no submissions as to the standard of review. [ 21 ] While the Applicants frame the Notice of Application for Judicial Review [Notice of Application] as challenging the decision of the [NAME_17] to enact the [NAME_19], their application does not actually challenge that decision. They do not assert that the law was invalidly enacted, or that the decision to enact it was unreasonable or procedurally unfair. The challenge contained in the Notice of Application is concerned with the constitutionality of the [NAME_19]. This is reflected in subsequently filed Notice of Constitutional Question. [ 22 ] In [NAME_35] v [NAME_36] [NAME_15] #128 , 2023 FC 220 [ [NAME_35] ], Justice Favel addressed a number of issues, including three that pertained to sections 25, 15(1) and 1 of the Charter , as well as remedies. With respect to those issues, he held: [ 54 ] The remaining issues do not attract a standard of review. Typically, whether a decision-maker’s enabling statute violates the Charter and whether an infringement is saved by section 1 are constitutional questions that attract a correctness review ( [NAME_37] , at paragraph 57). This standard also applies to whether section 25 of the Charter   operates as the Respondent alleges ( [NAME_37] ,   at paragraphs 55–56). However, the [NAME_38] did not pronounce on any of these questions.

Accordingly, no standard of review applies to Issues #3, #4, or #5. This distinction is more academic than practical, as “no standard of review” is the functional equivalent of a “correctness review”. [ 23 ] In my view, similarly, no standard of review applies in this case in that no decision-maker made determinations as to the allegations of unconstitutionality which are now before me. However, more generally, the standard of review of correctness applies to constitutional questions ( Canada (Minister of Citizenship and Immigration) v [NAME_37] , 2019 [NAME_94] 65 at paras 53-55; [NAME_39] v [NAME_40] [NAME_15] #462 , 2023 FC 1239 [ [NAME_39] ] at para 35 ). [ 24 ] [ADDRESS] has also held that even if there has not been a "decision," the Court has jurisdiction to hear a challenge to the constitutional validity of a legislative enactment, which in this case is the [NAME_19] (see [NAME_39] at para 50; see also [NAME_41] v [NAME_42] [NAME_15] , 2021 FC 539 at para 12). Scope of the Judicial Review [ 25 ] As a preliminary matter I note that in the Notice of Application, the Applicants state that they are challenging the decision of the [NAME_17] to enact the [NAME_19] contrary to the Charter , the Constitution Act, 1982 and [NAME_20] . The remedies sought include a declaration that the entirety of the [NAME_19] is unconstitutional and invalid. [ 26 ] The Notice of Application does not challenge specific provisions of the [NAME_19] as unconstitutional. However, the grounds of the application include the factual backdrop and that:

10) The [NAME_19] discriminates on the basis of sex and/or analogous grounds and is in breach of section 15 of the Canadian Charter of Rights and Freedoms . The [NAME_19] grants automatic citizenship to those who are already on the [NAME_23], and were therefore eligible under the discriminatory 1987 Membership Code . But all others must apply for membership at the discretion of Chief and Council. Even if discretionary membership is granted, the person is subjected to a probationary and restrictive rights period where they are denied equal access to certain civil rights, such as: the right to run for public office; the right to housing; the right to educational funding, as well as other types of social funding. As a result, those discriminated against under the 1987 Membership Code continue to suffer discrimination on the basis of sex as they do not have an automatic right to membership and are subjected to a period of restricted rights. Further, descendants of those who accepted Métis scrip who are not already on the [NAME_23] are prohibited from applying for membership. However, those who are descendants of those who accepted Métis scrip who are already on the [NAME_23] are entitled to automatic membership. Whether one is already on the [NAME_23] is determined on the basis of sex or analogous grounds. ….

16) The [NAME_19] discriminates on the basis of sex against Indigenous women and descendants of Indigenous women, as Indigenous men and descendants of Indigenous men who were entitled to membership under the unconstitutional 1987 Membership Code are entitled to automatic membership under the [NAME_19] . Whereas those who were unconstitutionally discriminated on the basis of sex again by the 1987 Membership Code are subjected to a discretionary application process and a period of restricted rights under the [NAME_19] . [ 27 ] What is apparent from the Notice of Application is that the underlying basis of the Applicants’ Charter challenge is the exclusion from the automatic right of citizenship and the requirement to apply for citizenship, which they view as discriminatory. The Notice of Application does not specify any impugned provisions of the [NAME_19]. However, it does make direct reference to the automatic right of citizenship which is contained in section 7.0; the eligibility criteria and application process which are set out in sections 8.0, 9.0, 18.0 and 19.0; the Probationary Period and Restricted Rights Period which are set out in section 12; and the prohibition on descendants of those who accepted Métis scrip who are not already on the [NAME_23] from applying for membership which is contained in section 15.03. [ 28 ] The Notice of Application makes no reference to the revocation of citizenship provisions set out in section 13.04 which the Applicants raised at the hearing. Nor does the Notice of Application reference the protest provisions in section 21, which the Applicants raised in their written submissions and at the hearing. [ 29 ] Rule 301(e) of the Federal Court Rules , SOR/98-106 states that an application shall be commenced by a notice of application in Form 301 and setting out “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.” Additional grounds not included in a Notice of Application are generally not properly in issue ( Tl’azt’en [NAME_15] v [NAME_43] , 2013 FC 226 at para 6; [NAME_44] v [NAME_45] , 2025 FC 1992 at paras 128-135). Therefore, the Applicants arguments regarding sections 13.04 and 21 of the [NAME_19] are not properly in issue as specific impugned provisions and will not be addressed as such in these reasons. The Evidence [ 30 ] The parties filed the following affidavits in support of the application for judicial review: The Applicants filed the affidavit of [NAME_5] sworn June 17, 2023; the affidavit of [NAME_2] sworn June 20, 2023; and, the affidavit of [NAME_46] sworn June 23, 2023; The [NAME_17] submitted the affidavit of [NAME_48] sworn October 13, 2023; the affidavit of [NAME_51] sworn October 13, 2023; the affidavit of [NAME_53] sworn October 13, 2023; and, the affidavit of [NAME_55] sworn October 13, 2023. [ 31 ] Transcripts of the November 29, 2023, cross-examinations of the affiants [NAME_46]; [NAME_2]; [NAME_5]; [NAME_48]; [NAME_55] and [NAME_51] were also filed as evidence. [ 32 ] While I have reviewed and considered all of this evidence, for purposes of these reasons, it is not necessary to mention or refer to each individual item. In my analysis, I have referenced the most pertinent evidence in the context of the issue being addressed. Issue 1: Have the Applicants failed to exhaust the administrative remedies available to them? The [NAME_17]’s Position [ 33 ] The [NAME_17] submits that the Citizenship Appeal Tribunal [Appeal Tribunal] is empowered to deal with legal issues relating to the [NAME_19]. Therefore, all of the arguments that the Applicants now make to this Court could have been made to the Appeal Tribunal. And, if the Applicants were unsatisfied with that result, then they could have proceeded to judicial review with the full evidentiary record and any reasons given by the Appeal Tribunal. By failing to do so, the Applicants have failed to exhaust the available administrative remedies. The [NAME_17] submits that this issue alone justifies dismissing the application (citing [COMPANY_58] v Canada (Border Services Agency) , 2010 [NAME_94] 61 at para 30 [ [NAME_59] ]; [NAME_61] v Canada (Citizenship and Immigration) , 2015 [NAME_94] 139 [ [NAME_61] ]). Further, that “courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its views known” (citing [NAME_62] (Information and Privacy Commissioner) v [NAME_62]' Association , 2011 [NAME_94] 61 at para 24). [ 34 ] The [NAME_17] submits that in [NAME_61] , the Federal Court of Appeal dismissed an appeal of an application for judicial review because the applicant had failed to take the step of applying for citizenship first, then judicially reviewing that decision if they were unsatisfied with the result of the application. There, Justice Stratas held that “by coming directly to this Court on judicial review, the appellant is impermissibly bypassing the administrative scheme [NAME_63] has set up under the Citizenship Act for determining issues of citizenship” ( [NAME_61] at para 73 ). It was irrelevant that the applicant wanted to raise Charter issues – they were still required to utilize the administrative scheme before coming to Court ( [NAME_61] at para 63-64; [NAME_59] at para 36). The [NAME_17] submits the Applicants have taken the same procedural approach in this matter and that it should similarly be fatal to their application for judicial review. [ 35 ] Further, to the extent that the Applicants may assert that the Appeal Tribunal does not have jurisdiction to decide Charter issues, the [NAME_17] disagrees. It submits that issue depends on whether the Appeal Tribunal has jurisdiction to decide questions of law (citing [NAME_21] ( Commission des normes, de l’équité, de la santé et de la sécurité du travail ) v [NAME_64] , 2018 [NAME_94] 3 at para 94). The Appeal Tribunal has such jurisdiction, as set out in the enabling statute, the [NAME_19], sections 20.01 to 20.15. Section 25 and section 15 of the Charter are also referred to in sections 1.02 and 1.08 of the [NAME_19]. The [NAME_17] submits that this Court has confirmed that various tribunals constituted by First Nations have the jurisdiction to decide Charter issues and, therefore, this is not an obstacle to proceeding to the Appeal Tribunal before coming to Court (citing [NAME_39] at para 45; [NAME_35] ; and, [NAME_65] v [NAME_66] , 2020 FC 1065 [ [NAME_67] ]). As stated in [NAME_67] , “the principle of self-government requires, at the very least, that the decision-maker to whom [[NAME_68]] entrusted the responsibility to apply its laws should be given the opportunity to make the initial decision” ( [NAME_67] at para 51). Further, where an administrative decision maker has not addressed the Charter issue before the Court, the Court lacks “the benefit of the reasons that the Appeal Tribunal could have provided” in relation to the Charter issue ( [NAME_67] at para 53). This is especially important when section 25 of the Charter is in issue, because those reasons could have “provided useful insights as to the application of the Charter in an Indigenous context, including the potential application of section 25” ( [NAME_67] at para 53). The [NAME_17] submits that all these rationales are applicable to the present case. [ 36 ] The [NAME_17] submits that this application should be dismissed on the basis of the Applicants’ failure to pursue these arguments with the Appeal Tribunal. Applicants’ Position [ 37 ] The Applicants did not address this issue in their written submissions. When appearing before me, the Applicants argued that this Court has previously set out the factors to be considered in determining whether the Court should refuse relief on the ground of prematurity (citing [NAME_69] v Canada (Citizenship and Immigration) , 2014 FC 1002 at para 34). Further, that the Supreme Court has identified considerations relevant to deciding whether an alternative remedy or forum is adequate so as to justify a discretionary refusal to hear a judicial review application and, in each context, the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance? (citing [NAME_1] v Canada (Attorney General) , 2015 [NAME_94] 37 [ [NAME_1] ] at para 42). The principles set out in [NAME_1] were also considered in Yatar v TD [NAME_70] , 2024 [NAME_94] 8 where the Supreme Court of Canada noted that the Court should consider not only the available remedy but also whether judicial review is appropriate (at para 56). [ 38 ] The Applicants argue that in this case the alternative remedy, an appeal to the Appeal Tribunal, is inadequate primarily because the citizenship scheme as a whole has been challenged and the Appeal Tribunal has no authority to find the [NAME_19] to be invalid. Nor can the Appeal Tribunal provide the remedy that the Applicants seek, being that the [NAME_17] membership list be remitted back to the [NAME_28] upon declaration of invalidity of the [NAME_19] as a whole, and/or a declaration that the [NAME_17] failed to comply with my order in [NAME_20] . Under the [NAME_19], the only authority of the Appeal Tribunal is to refer a refused citizenship application back to Chief and Council. Further, even if the Appeal Tribunal is able to address a Charter challenge arising from a denied citizenship application, this would not be a complete remedy because the Appeal Tribunal does not have the jurisdiction to address other provisions alleged to be discriminatory, including the section 12.02 five year period of restricted rights. [ 39 ] The Applicants submit that [NAME_61], relied on by the [NAME_17], is distinguishable as it dealt with citizenship for Canada and there was no allegation that the application process was discriminatory in and of itself as is the case here. [ 40 ] And, finally, that this matter has already been before this Court and the Applicants are arguing that the [NAME_17] did not comply with this Court’s previous order. Whether a party has complied with a prior court order is a decision for the Court to make, not a tribunal. Analysis General Principles [ 41 ] It is well established that when an administrative process has been legislatively effected, the parties who are governed by it must exhaust that process before seeking recourse to the courts. As held in [NAME_59] : [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted. The importance of this rule in Canadian administrative law is well-demonstrated by the large number of decisions of the Supreme Court of Canada on point: [NAME_73] v. University of Regina , [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian Band , [1995] 1 S.C.R. 3; Weber v. Ontario Hydro , [1995] 2 S.C.R. 929; R. v. Consolidated Maybrun Mines Ltd. , [1998] 1 S.C.R. 706 at paragraphs 38-43; Regina Police Association Inc. v. Regina (City) Board of Police Commissioners , [2000] 1 S.C.R. 360, 2000 [NAME_94] 14 at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc. , [2001] 2 S.C.R. 460, 2001 [NAME_94] 44 at paragraph 14-15, 58 and 74; Goudie v. Ottawa (City) , [2003] 1 S.C.R. 141, 2003 [NAME_94] 14; Vaughan v. Canada , [2005] 1 S.C.R. 146, 2005 [NAME_94] 11 at paragraphs 1-2; Okwuobi v. Lester B. Pearson School Board , [2005] 1 S.C.R. 257, 2005 [NAME_94] 16 at paragraphs 38-55; Canada (House of Commons) v. Vaid , [2005] 1 S.C.R. 667, 2005 [NAME_94] 30 at paragraph 96. [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g. , [NAME_74] , supra at paragraph 38; Greater Moncton International Airport Authority v. [NAME_75] of Canada , 2008 [NAME_94] 68 at paragraph 1; [COMPANY_76] of Art v. Ontario (Human Rights Commission) (1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g. , [NAME_74] , supra at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 119 D.L.R. (4th) 136 (B.C.S.C.), aff’d (1995), 130 D.L.R. (4th) 461 (B.C.C.A.); [NAME_77] v. [COMPANY_76] of Veterinarians (Ontario) (1991), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge: Dunsmuir v. New Brunswick , [2008] 1 S.C.R. 190 at paragraph 48. [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception. Little need be said about this exception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, [NAME_78] and [NAME_80], Judicial Review of Administrative Action in Canada (looseleaf) (Toronto: [NAME_82], 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: [NAME_83], 2001) at pages 485-494. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see [NAME_73] , supra ;  [NAME_84] , supra at paragraphs 38-55; University of Toronto v. [NAME_85], Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts. [ 42 ] In [NAME_61], the applicant brought an application for judicial review seeking a declaration that he was a Canadian citizen. He also raised a constitutional issue being that he was a stateless person entitled to Canadian citizenship under sections 6 and 7 of the Charter . The Federal Court of Appeal restated the general rule described in [NAME_59] and held: [57] According to this general rule, a reviewing court can only be approached as a last resort after other adequate, effective forums for relief have been pursued and have failed: see, e.g. , JP Morgan , above at paragraph 81; [NAME_86] v. Canada (Minister of Justice) , 2004 [NAME_94] 352, [2005] 2 F.C. 195; [COMPANY_87] v. Canada ([NAME_88]) , 2014 [NAME_94] 245, 465 N.R. 152. In this case, the appellant has approached the reviewing court, the Federal Court, not as a last resort but as a first resort. [ADDRESS]’s comments in paragraphs 100 and 101 of JP Morgan are apposite: …[T]he question is not whether [parties’] rights can be fully vindicated. They can. The question is how to do it consistent with proper practices and procedures, when to do it, in what forum, and by what means. For some, judicial review in the Federal Court is a preferred tool of first resort. They are wrong. It is a tool of last resort, available only when a cognizable administrative law claim exists, all other routes of redress now or later are foreclosed, ineffective or inadequate, and the Federal Court has the power to grant the relief sought. [58] Important rationales lie behind the general rule that a reviewing court should be approached as a last resort, not a first resort: [NAME_89],  above at paragraphs 30-33; [COMPANY_87] , above at paragraphs 40-45. One rationale—of force in this case—is that where [NAME_63] has set up an exclusive statutory scheme in which a particular administrative official, here the Minister, grants citizenship based on particular statutory standards and in accordance with legislatively prescribed procedures, a person seeking citizenship cannot bypass that scheme and go directly to a reviewing court. [ 43 ] [ADDRESS] of Appeal went on to describe the rare circumstances in which the general rule might be relaxed and matters that would not warrant that discretionary determination including that “[t]he existence of constitutional issues, alone, is not enough to warrant early, immediate access to a reviewing court where an adequate and effective forum for relief exists elsewhere: [COMPANY_87], above. Something extra—for example, urgent circumstances—are required before the general rule can be relaxed: [NAME_84] v. [COMPANY_90]; [NAME_92] v. [NAME_21] (Attorney General); [NAME_93] v. [NAME_21] (Attorney General) , 2005 [NAME_94] 16, [2005] 1 S.C.R. 257 at paragraphs 51-53.” (at para 60). [ 44 ] [ADDRESS] of Appeal rejected the applicant’s argument that the Minister was not an adequate or effective forum because the Minister did not have to power to consider the Charter when exercising powers under the Citizenship Act , RSC 1985, c C-29. [ADDRESS] found that if the applicant applied to the Minister, he could present the Charter as a value that the Minister had to take into account when deciding whether the applicant was entitled to citizenship and that the failure to do so could result in a reviewable error (para 64). Jurisdiction of the Appeal Tribunal to consider the Charter [ 45 ] The parties agree that the Charter applies to the [NAME_19] (see, as examples of the Charter being applied to [NAME_14] legislation, [NAME_94] v [NAME_94] , 2013 [NAME_94] 192 at paras 38-39 (reversed on other grounds 2015 [NAME_94] 30) [ [NAME_94] ([NAME_94])]; [NAME_67] at paras 32-33; [NAME_32] at paras 92, 101; [NAME_95] v [NAME_96] , 2025 FC 267 [ [NAME_95] ]; [NAME_98] v [NAME_99] 150A , 2021 FC 1221 [ [NAME_98] 2021 ]). [ 46 ] As discussed above, the [NAME_19], which has been ratified by the electors of the [NAME_17], sets out a process by which those who are not automatically granted citizenship can apply to become Citizens. It also includes a process by which negative citizenship decisions by Council can be appealed to the Appeal Tribunal. The question is whether the Appeal Tribunal has the jurisdiction to apply the Charter to the [NAME_19]. [ 47 ] In [NAME_101] v Canada (Citizenship and Immigration) , 2026 [NAME_94] 36, the Federal Court of Appeal stated: [ 42 ] Administrative tribunals with the power to decide questions of law by virtue of their enabling statute have presumptive jurisdiction to determine issues of constitutional law, including the constitutional validity of a provision of their enabling statutes: [NAME_102] at para. 34 ; [COMPANY_103] v. [COMPANY_104] , 2024 [NAME_94] 22   at para. 87, citing R. v. Conway , 2010 [NAME_94] 22 at para.

22. Presumptive jurisdiction to consider constitutional questions can only be rebutted “by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations”: [NAME_102] at para. 42. [ 43 ] The grant of jurisdiction to consider questions of law can be explicit or implicit: [NAME_102] at paras. 35-41, 48; [NAME_106]  at para.

43. Explicit authority is set out in the terms of the tribunal’s statutory grant of authority. The existence of implied jurisdiction requires consideration of the governing statute as a whole: [NAME_107] v. Canada (Minister of Citizenship and Immigration) , 2006 [NAME_94] 365 at para. 49 ( [NAME_107] ). In [NAME_102] , the Supreme Court stated: [48] … Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. […] If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter . [ 48 ] In the Indigenous law context, in [NAME_67] , Justice Grammond held: [ 34 ] That brings us to the question of who has jurisdiction to apply the Charter to the Election Act. Again, a decision of the Federal Court of Appeal gives highly relevant indications. In Perry , at paragraph 45, the Court stated that a [NAME_14] election appeal tribunal is presumed to have jurisdiction to deal with constitutional questions. In other words, an election appeal tribunal can deal with constitutional issues, unless there is a specific exclusion in its enabling legislation. This holding is in line with decisions of the Supreme Court of Canada recognizing such jurisdiction to administrative tribunals: Nova Scotia (Workers' Compensation Board) v [NAME_102]; Nova Scotia (Workers' Compensation Board) v [NAME_108] , 2003 [NAME_94] 54, [2003] 2 SCR 504 [ [NAME_102] ] . In [NAME_109] v [NAME_110] , 2009 [NAME_94] 235, at paragraphs 57–67 [ [NAME_110] ], the Federal Court of Appeal reached the same conclusion and found that an “election arbitrator” had the power to decide constitutional questions. See also [NAME_111] v [NAME_112] des Atikamekw d’Opitciwan , 2019 FC 1131 at paragraphs 41–42; [NAME_113] v [NAME_114] , 2020 FC 340. [ 49 ] Justice Grammond held that, in the circumstances before him, the presumption was not rebutted. The [NAME_66] Appeal Tribunal Act granted the Appeal Tribunal broad powers, including the power to invalidate [NAME_67] laws that were contrary to its constitution and could determine any question of law that arises during an application. Justice Grammond noted that the Supreme Court of Canada has stated that an explicit grant of this kind includes the power to decide whether legislation is contrary to the Charter ( Nova Scotia (Workers' Compensation Board) v [NAME_102]; Nova Scotia (Workers' Compensation Board) v [NAME_108] , 2003 [NAME_94] 54 [ [NAME_102] ] at para 40). He also noted that, when the Appeal Tribunal Act intended to withhold jurisdiction over certain matters, it said so explicitly. He concluded that the Appeal Tribunal had jurisdiction to decide that certain provisions of the [NAME_67] were contrary to the Charter and thus invalid. [ 50 ] In this case, the [NAME_19] appeal process, which engages the Appeal Tribunal, has a limited scope, it is concerned only with appeals of citizenship decisions. The [NAME_19] also does not contain language conveying broad powers as was the case in [NAME_67], nor does it explicitly grant the Appeal Tribunal the jurisdiction to decide questions of law. However, as confirmed in [NAME_101] , the grant of jurisdiction to consider questions of law can be implicit. The [NAME_19], in section 1, Statement of Intent and Notice, acknowledges that the determination of Indian status and citizenship based on gender as set out in the Indian Act has been found to be discriminatory by courts in various jurisdictions (s 1.05) and that the [NAME_19] shall not be interpreted as contrary to section 15 of the Charter (s 1.08). Given this, and considering the purpose of the [NAME_19] in whole and the [NAME_17]’s authority to determine its own membership list, I am satisfied that the Appeal Tribunal has implicit jurisdiction to decide questions of law. [ 51 ] Additionally, from a practical perspective, the required composition of the Appeal Tribunal includes a practising lawyer who is familiar and has experience with the [NAME_17] (section 20.02). [ 52 ] Further, a [NAME_14] tribunal is presumed to have jurisdiction to deal with constitutional questions unless there is a specific exclusion in its enabling legislation ( [NAME_67] at para 34). The [NAME_19] contains no such exclusion. [ 53 ] Given the above, I find that the Appeal Tribunal has jurisdiction to apply the Charter when considering appeals of applications for citizenship that have been denied or revoked by Council. Effective remedy [ 54 ] However, the limited scope of the Appeal Tribunal’s jurisdiction raises the further question of whether it is able to provide an effective remedy. [ 55 ] Section 20.01 of the [NAME_19] is narrow in terms of what can be sent to the Appeal Tribunal for review. It states “[a]ny applicant whose application for citizenship is denied or revoked, if they so decide, shall apply within thirty (30) days of the decision of the Council for a review of the decision by [NAME_68] Appeal Tribunal.” Therefore, in order to bring their challenge to the Appeal Tribunal, the Applicants would have had to apply for citizenship and been denied. They could then apply for a review of the decision by the Appeal Tribunal. The evidence, including that of the Applicants themselves, is that they have not made applications for citizenship. [ 56 ] It is clear from the [NAME_19] that the Appeal Tribunal has the jurisdiction to review decisions of Council to deny or revoke citizenship. Thus, had the Applicants applied for and been denied citizenship, they could have made their Charter arguments concerning automatic citizenship and the requirement to apply for citizenship in that venue. However, as the [NAME_17] acknowledged when appearing before me, it is not clear that the Appeal Tribunal’s jurisdiction extends to also permit it to entertain and make determinations concerning matters other than appeals under section 20. In particular, the Restricted Rights Period – which commences only after the granting of citizenship and following any Probationary Period. Further, had Applicants applied for and been granted citizenship, they would not have recourse to the Appeal Tribunal to challenge the provisions setting out the Restricted Rights Period. At that point they likely would have to seek judicial review regarding its constitutionality. [ 57 ] And, in terms of effective remedy, [NAME_61] is distinguishable. There the applicant had brought an application for judicial review and sought a declaration that he was a Canadian citizen. [ADDRESS] dismissed that application. On appeal, the applicant argued that unless that relief was granted, he would continue to be stateless, in contravention of the Charter and the Convention on the Reduction of Statelessness . [ADDRESS] of Appeal found that the applicant had other adequate and effective forums for relief that had not been exhausted. Specifically, he could apply for national status or citizenship in India and in Canada but had not done so. [ADDRESS] of Appeal also rejected the applicant’s argument that the Minister was not an adequate or effective forum because he did not have the power to consider the Charter when exercising powers under the Citizenship Act . [ 58 ] Thus, while in [NAME_61] the obtaining of citizenship was open to the applicant by way of a legislative process, which was an available and effective remedy, in this case the remedy sought is not a declaration of citizenship. Rather, the Applicants seek to have the legislative regime which affords a path to citizenship declared unconstitutional, in whole. Given the limited jurisdiction of the Appeal Tribunal, it is not apparent that the Appeal Tribunal has the authority to do so. Nor could the Appeal Tribunal provide the other remedies sought by the Applicants in this application for judicial review, being an order that the [NAME_17] membership list be returned to the [NAME_28] upon declaration of invalidity of the [NAME_19] and/or a declaration that the [NAME_17] failed to comply with my order in [NAME_20] . [ 59 ] In my view, it would have been preferable had the Applicants first applied for citizenship and, if denied, raised their constitutional and other arguments before the Appeal Tribunal before pursuing judicial review. This would have also perhaps narrowed the scope of any subsequent judicial review. However, in these circumstances, it is not apparent that the Appeal Tribunal has jurisdiction to address the Probationary Period and mandatory Restricted Rights Period or to declare the [NAME_19] in whole to be unconstitutional. Nor would the Appeal Tribunal have jurisdiction to provide all of the remedies that the Applicants seek. Thus, I am not convinced that the administrative process affords an effective remedy such that was required to be pursued prior to judicial review. Issue 2: Does the [NAME_19] discriminate based on gender or analogous grounds, contrary to section 15 of the Charter ? [ 60 ] Subsection 15(1) of the Charter states “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” [ 61 ] The Supreme Court of Canada has identified a two-step analytical framework for establishing whether a law infringes the guarantee of equality under subsection 15(1) of the  Charter . The first part of the analysis “asks whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground …. The second part of the analysis focuses on arbitrary – or discriminatory – disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” ( [NAME_115] v [NAME_94] , 2015 [NAME_94] 30 at paras 19-20 [ [NAME_94] ([NAME_94])]; see also [NAME_21] (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux , 2018 [NAME_94] 17 [ Alliance ] at para 25; [NAME_116] v [NAME_117] , 2018 FC 822 at para 47; [NAME_118] v Canada , 2020 [NAME_94] 28 at para 27 [ [NAME_118] ]; R v [NAME_119] , 2022 [NAME_94] 39 [ [NAME_119] ] at para 28). Applicants’ Submission [ 62 ] The Applicants acknowledge the two-step analysis required to establish whether a law infringes the guarantee of equality under subsection 15(1) of the Charter. [ 63 ] With respect to the first step, the Applicants submit that it is clear that the [NAME_19] creates a distinction between existing citizens and prospective citizens. The question is whether that distinction is based on sex and/or an analogous ground. The Applicants submit that a review of the history of amendments to the Indian Act , found in decisions such as [NAME_25] v The Registrar, Indian and Northern Affairs Canada, 2007 BCSC 827 [ [NAME_25] ] partially rev’d 2009 BCCA 153, leave of appeal to the Supreme Court of Canada refused and [NAME_22] c Canada (Procureur Général), 2015 QCCS 3555 [ [NAME_22] ] , would lead to the inevitable conclusion that the distinction is based on sex and/or an analogous ground. However, this case is simplified by my decision in [NAME_20] which found that the 1987 Membership Code discriminated against the applicants and other [NAME_17] community members on the basis of sex, contrary to section 15 of the Charter . The Applicants submit that the 1987 Membership Code forms the basis for the distinction found in section 7 of the [NAME_19]. [ 64 ] According to the Applicants, in [NAME_20] this Court found that the basis in the [NAME_19] for distinguishing between the existing citizens and prospective citizens created a distinction on the basis of sex, and was discriminatory and contrary to section 15 of the Charter . They also submit that any argument that the 1987 Membership Code was not discriminatory is res judicata as between the parties ( [NAME_120] v [NAME_121] (Regional Police Services Board) , 2013 [NAME_94] 19 at para 88). [ 65 ] The Applicants submit that this does not mean that every prospective citizen is being discriminated against on the basis of sex. However, the class of prospective citizens includes a [COMPANY_122] of individuals that are being discriminated against on the basis of sex, similar to how they were under the 1987 Membership Code. The Applicants say that they fall within that group. [ 66 ] And, although the impugned provisions do not explicitly draw a distinction based on sex, their effect is that the prospective citizens with connections to the [NAME_17] are the group of disenfranchised, disadvantaged status Indians who have had to regain status because one of their female ancestors lost status because of discriminatory provisions in the Indian Act. In contrast, the existing members are part of the group of non-disenfranchised men who never lost status. This is a clear and established distinction and discrimination based on sex. The [NAME_17]’s Submissions [ 67 ] The [NAME_17] points out that the [NAME_19] makes no express distinction based on sex. Therefore, the question is whether it results in adverse effect discrimination on the basis of sex/gender. The [NAME_17] submits that the Applicants have failed to present sufficient evidence to support this assertion. [ 68 ] The [NAME_17] submits that the Applicants’ overall approach is reductionist and relies on incorrect assumptions about the composition of the [NAME_17]’s current citizens compared to the composition of the prospective [NAME_17] citizenship applicants. The Applicants’ assertion that the existing [NAME_17] citizens are part of the “non-disenfranchised men” and all prospective applicants are disenfranchised people that “have had to regain status because one of their female ancestors lost status” is a false dichotomy that is unsupported by any evidence. Rather, the situation is far more complex and the composition of the [NAME_17] and potential [NAME_17] applicants is diverse. [ 69 ] The [NAME_17] also submits that the Applicants incorrectly assert that [NAME_20] is dispositive of this issue. They submit that the Court is not being asked to evaluate whether the Applicants were discriminated against by Canada when they lost their status, nor is the Court being asked to evaluate whether the Applicants were discriminated against under the 1987 Membership Code. Rather, the Applicants’ challenge is to the entirety of the current [NAME_19] – a law that would make them eligible for [NAME_17] citizenship if they simply submitted an application. [ 70 ] Further, that by grandfathering in existing members, the [NAME_17] was operating under the legal constraints put in place by Canada as it pertains to the membership codes of First Nations. [NAME_28] will not approve a membership code that does not ensure all individuals on the membership list are granted membership under any new rules. [ 71 ] On this point, the [NAME_17] submits that the membership code of virtually every [NAME_14] contains a similar grandfathering provision and that the Applicants’ attempt to frame this as discriminatory ignores this legal constraint as well as the actual purpose of the grandfathering provision in the [NAME_17]. [ 72 ] The [NAME_17] also submits that the Applicants take issue with the provisions of the [NAME_19] which place restrictions on the rights of new citizens for a period of time (the Probationary and Restricted Rights Periods). While these provisions clearly make a distinction between the rights of current citizens and new citizens, this is not a distinction on the basis of sex/gender. It is well established that not all distinctions are discriminatory, and not all distinctions are contrary to section 15 of the Charter . The [NAME_17] submits that the Applicants cannot rely on discrimination that was imposed on them by Canada prior to 1985. The question is whether the [NAME_19] now in force discriminates against them. [ 73 ] Finally, the [NAME_17] submits that the Applicants also take issue with the Métis Scrip provision of the [NAME_19] which does make distinctions, however, there is no distinction on the basis of sex/gender. The Applicants have not put forward any other ground of discrimination in relation to the Métis Scrip provision and, therefore, the challenge to this provision must also fail at the first stage of the section 15 test. Analysis i. Impact of [NAME_20] [ 74 ] As the Applicants point out, in [NAME_20] I held as follows: [ 100 ] Given the agreement of the parties on this issue, it is sufficient to say that I agree with them that the 1987 Membership Code discriminates against the Applicants and other [NAME_17] community members on the basis of sex, contrary to s 15 of the Charter . [ 101 ] Section 7 of the 1987 Membership Code freezes in place eligibility for membership as it was at the time immediately prior to the 1987 Membership code coming into force. At that time, entitlement to be on the [NAME_123] was based on the criteria in s 6 of the Indian Act . This includes the former ss 6(1)(a) and 6(1)(c) of the Indian Act , which disadvantaged the descendants of female ancestors with Indian status as compared to descendants of male ancestors with Indian status. As found in [NAME_25],  those provisions were an “echo of historic discrimination” ( [NAME_25] at para 111). [ 102 ] For bands whose membership is managed by the Department of Indigenous Services pursuant to s 11 of the Indian Act , the legislative amendments in response to [NAME_26] have expanded eligibility for Indian status, and therefore for [NAME_23] membership. However, for the [NAME_17] under the 1987 Membership Code, persons who have become eligible for Indian status due to these legislative changes   remain ineligible for membership in [NAME_17] because their ancestors were not eligible for membership immediately prior to the 1987 Membership Code coming into force. This ‘echo’ of ss 6(1)(a) and 6(1)(c) is a prima facie infringement of the rights to equality protected by s 15 of the Charter . And, as in [NAME_26] , the infringement of the Applicants’ rights under s 15 is not justified pursuant to s 1 of the Charter . (emphasis added) [ 75 ] The membership eligibility provisions contained in the 1987 Membership Code which perpetuated the discriminatory provisions of the pre-1985 Indian Act were:

7)   Commencing on the date this Code comes into force, a person is entitled to have his name entered in the [NAME_23] if: a) that person was entered in the [NAME_23] or was entitled to be entered in the [NAME_23] immediately prior to this Code coming into force b) both of that person’s parents are entered or were or are entitled to be entered in the [NAME_23]; or, c) one of that person’s parents is or was entered in the [NAME_23] and the other parent is or was entered in the [NAME_23] of another [NAME_23]; [ 76 ] The [NAME_19] provisions as to automatic citizenship are as follows: 7.01 A person has a right to be a Citizen of [NAME_68] by having their name entered automatically on the [NAME_29] if: a) they are registered under the Indian Act as a status Indian; and b) they are listed under [NAME_68] on the [NAME_28] [NAME_23] or Indian Registry; and c) they are registered on the existing [NAME_29] of [NAME_68] and they have satisfied a) and b) as of the date this Law is passed. [ 77 ] The [NAME_29] is defined as meaning the list of persons maintained by the [NAME_17] under the terms of the [NAME_19] and includes a [NAME_23] controlled by the [NAME_17] pursuant to section 10 of the Indian Act – which captures the 1987 [NAME_23]. [ 78 ] Further, section 10 of the Indian Act permits a [NAME_23] to assume control of its own membership. It also addresses acquired rights: Acquired rights (4) Membership rules established by a [NAME_23] under this section may not deprive any person who had the right to have his name entered in the [NAME_23] for that [NAME_23], immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force. (5) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the [NAME_23] under paragraph 11(1)(c) immediately before the [NAME_23] assumed control of the [NAME_23] if that person does not subsequently cease to be entitled to have his name entered in the [NAME_23]. [ 79 ] In this regard, the [NAME_17] refers to a web page of Crown-Indigenous Relations and Northern Affairs (Government of Canada, “Getting out of the business of Indian registration” , (last modified 28 November 2018), online: ). This is described as a fact sheet designed in support of the Collaborative Process on Indian Registration, [NAME_23] and [NAME_18]. It describes section 10 of the Indian Act , the requirements that a [NAME_23] must meet to assume control of its own membership, and then states: In addition to these three specific requirements, bands are also required to respect the acquired rights of individuals who are currently members or entitled to be members of their [NAME_23]. In other words, the [NAME_23] cannot deny membership to persons who were entitled to be a member on the day before the [NAME_23]'s membership rules came into force. The minister cannot approve a code if these acquired rights are not preserved. If the requirements of section 10 are met, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) will notify the [NAME_23] of the change of membership control and provide the [NAME_23] with a copy of its [NAME_23] list. From that day forward, the [NAME_23] is required to maintain its own [NAME_23] list and CIRNAC has no further responsibility with respect to the [NAME_23]'s membership. Any individual who wishes to be a [NAME_23] member must contact the [NAME_23] to be added to their membership list. [ 80 ] Thus, those [NAME_27] who were on, or were entitled to be on, the [NAME_123] on the day before the 1987 Membership Code came into effect could not, pursuant to subsection 10(4) of the Indian Act , be denied membership under that Code and, based on the definition of the [NAME_29], nor could they be denied membership under the [NAME_19]. That is, they were effectively grandfathered into citizenship. [ 81 ] This may explain why the [NAME_19] makes a distinction between those members who automatically receive citizenship and those who must apply for it. However, this does not change the fact that some of those who were excluded from membership in 1987 – and therefore cannot automatically obtain citizenship under the [NAME_19] – were excluded due to discrimination based on sex. [ 82 ] To this extent, I agree with the Applicants that discrimination based on sex was previously determined in [NAME_20] . [ 83 ] But where the [NAME_19] departs from the 1987 Membership Code is that, under the former, persons who became eligible for (and obtained) Indian status due to legislative changes after the 1985 Amendments to the Indian Act remained ineligible for [NAME_17] membership because their ancestors were not eligible for membership immediately prior to the 1987 Membership Code coming into force. There was no way forward. However, under the [NAME_19], those who may have been so discriminated against with the result that they are not eligible for automatic citizenship, are now able to apply for citizenship. As the [NAME_17] puts it, there is now a path forward to citizenship for those persons. [ 84 ] The question is, is that path – or process – discriminatory. ii. Section 15 Test – Step One [ 85 ] The Supreme Court in [NAME_32] restated the two‑step test for assessing a subsection 15(1) Charter challenge, being that the claimant must demonstrate that the impugned law or state action: (a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. (citing [NAME_119] at para 28, R v [NAME_124]. , 2021 [NAME_94] 19 at paras 56, 141; [NAME_118] at para 27; [NAME_94] ([NAME_94]), at paras 19‑20). [ 86 ] In [NAME_119] , the Supreme Court also discussed cases of adverse impact discrimination which “occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground” ( [NAME_119] at para 29 citing [NAME_118] at para 30; see also [NAME_125] v Canada (Attorney General) , 2011 [NAME_94] 12 [ [NAME_125] ] at para 64; [NAME_94] ([NAME_94]), at para 22). [ 87 ] It noted that the two steps of the section 15 test are not watertight compartments because each step considers the impact of the impugned law on the protected group. However, while there may be overlap in the evidence that is relevant at each step, the two steps ask fundamentally different questions. Therefore, the analysis at each step must remain distinct: [ 31 ] The first step examines whether the impugned law created or contributed to a disproportionate impact on the claimant group based on a protected ground. This necessarily entails drawing a comparison between the claimant group and other groups or the general population ( [NAME_126] v. [COMPANY_128] , 1989 CanLII 2 ([NAME_94]), [1989] 1 S.C.R. 143, at p. 164). The second step, in turn, asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage . The conclusion that an impugned law has a disproportionate impact on a protected group (step one) does not lead automatically to a finding that the distinction is discriminatory (step two). [ 88 ] The Supreme Court stated that all laws are expected to impact individuals. Therefore, merely showing that a law impacts a protected group is insufficient. At step one of the subsection 15(1) test, “claimants must demonstrate a disproportionate impact on a protected group, as compared to non‑group members. Said differently, leaving a gap between a protected group and non‑group members unaffected does not infringe s. 15(1)” ( [NAME_119] at para 40). In that regard, at step one, “the claimant must present sufficient evidence to prove the impugned law, in its impact,  creates or contributes to a disproportionate impact on the basis of a protected ground ” (para 42). Causation is therefore a central issue. Claimants must establish a link or nexus between the impugned law and the discriminatory impact (para 43). The words “contributed to” recognize that the impugned law need not be the only or dominant cause of the disproportionate impact (paras 45, 49(b)). [ 89 ] Ideally, claims of adverse impact discrimination should be supported by two types of evidence: evidence about the full context of the claimant groups situation and evidence about the outcomes that the impugned law or policy has produced in practice (para 49). [ADDRESS] summarized the first step as follows: [ 50 ] In summary, the first step asks whether the impugned provisions create or contribute to a disproportionate impact on the claimant group based on a protected ground as compared to other groups. If a claimant establishes that the law or state action creates or contributes to a disproportionate impact, the court should proceed to the second step. But to be clear, while the evidentiary burden at the first step should not be undue, it must be fulfilled. The particular evidentiary burden on claimants will depend on the claim. What remains consistent is that there is a burden on claimants at step one. [ 90 ] In this matter, to be considered for citizenship, the [NAME_19] requires that persons not eligible for automatic citizenship make an application in accordance with the [NAME_19] process and that each application will be considered on its own merits (section 8.08). [ 91 ] The eligibility requirements of the [NAME_19] are that person must submit an application; be a direct descendant of an original [NAME_23] Member who was alive at the time Treaty 10 was entered into; and, are registered on the [NAME_28] [NAME_23] or Indian Registry (section 8.01). These eligibility requirements, unlike the 1987 Membership Code, are not directly tied to the individual’s parent being listed on prior [NAME_23]. That is, on their face, they do not perpetuate the prior discrimination based on parental gender previously found in the Indian Act and echoed in the 1987 Membership Code. The question is whether their impact creates or contributes to a disproportionate impact on the basis of a protected ground. [ 92 ] The evidence on this point comes from the Applicants and [NAME_46]. [ 93 ] In her affidavit, [NAME_2] describes herself as a status Indian registered under the Indian Registry to the [NAME_17]. She regained her status in 1985. [ 94 ] She deposes that she is the daughter of [NAME_129] and [NAME_131], however, her birth certificate incorrectly lists her father as [NAME_133], her stepfather. Her biological father, [NAME_129], was a status Indian and a member of the [NAME_17]. Her mother, [NAME_131], was a status Indian and a member of the [NAME_17] but lost her status and membership when she married [NAME_133], who was a non-status person. [NAME_131] regained her status in 1985. [ 95 ] Further, that she was denied status due to discriminatory provisions in the Indian Act . Specifically, because [NAME_131] and [NAME_129] were not married when she was born prior to the 1985 amendments to the Indian Act, and because status was passed on through the paternal line. [ 96 ] She states in her affidavit that “[h]ad [NAME_131] been male, I would have inherited status from [NAME_132] upon birth and been on the [NAME_23] list for [NAME_17] in 1985, and therefore been on the [NAME_23] list under [NAME_17]’s previous 1987 Membership Code, and therefore be entitled to automatic citizenship under the [NAME_19].” [ 97 ] When cross-examined on her affidavit, she deposed that what preluded her from being on the [NAME_23] at the time when the 1987 Membership Code came into effect was that her birth certificate incorrectly lists [NAME_133], a non-[NAME_17] member, as her father. When asked if she had taken any steps to correct this, she stated that she had been advised that birth certificates are administered by the Province of Saskatchewan (not the [NAME_17]) and that she would have to apply to the Province to the have her birth certificate changed. She testified that she initially had not done so to avoid hurting her stepfather’s feelings. Both of her parents have now died. When asked why she had not, since then, sought to have her birth certificate changed, she stated “[b]ecause I thought with this court that I didn’t have to, that we would automatically be registered into the [NAME_23] list. I didn’t think I needed to pursue it.” She acknowledged that if both of her biological parents were [NAME_27] she would have been eligible for membership under the 1987 Membership Code. [ 98 ] [NAME_46] was originally an applicant in this matter but subsequently withdrew from the application. He is the son of the Applicant [NAME_2]. He deposes that his father ([NAME_135]) is a status Indian and a member of the [NAME_17]. [NAME_46] states that he, along with approximately 1,300 other people, their children and future descendants, have been denied their right to be a [NAME_23] member of the [NAME_17] and included on the [NAME_23] under the 1987 Membership Code. Had his maternal grandmother “been male” he would have been entitled to membership in the [NAME_17] from birth and included in the [NAME_123] under the 1987 Membership Code. Further, with respect to the effect of the [NAME_19]:

29. Under the [NAME_19], because I was not registered on the [NAME_23] list under the 1987 Membership Code due to its discriminatory provisions, I am not eligible for automatic membership under the [NAME_19] , as I would have been but for the discrimination. Instead, because my ancestor was female rather than male, I must apply for membership, which can be granted or denied at the discretion of Chief and Council and, if granted, I would be subjected to a period of restricted rights wherein I would not be entitled to run for office in [NAME_17] or receive other benefits of membership in [NAME_17]. People whose ancestors are male, instead, get to be members automatically with no restricted rights period. [ 99 ] In his affidavit, the Applicant, [NAME_5] deposes that he regained his status in 2011 following amendments to the Indian Act and that he is registered to (affiliated with) the [NAME_17]. [ 100 ] Further, that his mother, [NAME_138], was a non-status Indian as her father was enfranchised under previous provisions of the Indian Act , having taken scrip and received payments from Canada. His father, [NAME_140], was a non-status Indian who was entitled to regain status after 1985, but not to pass that status on to him. [ 101 ] [NAME_5] states that his paternal grandfather, [NAME_141], was a status Indian who lost his status after he was adopted by Christian missionaries. His paternal grandmother, [NAME_143] (nee [NAME_50]) was a status Indian and member of the [NAME_17] but, due to the discriminatory provisions of the Indian Act at that time, lost her status when she married [NAME_141]. [NAME_5] deposes that “[h]ad my paternal grandmother, [NAME_143], been male, I would have always been a member in [NAME_17], and would be entitled to membership automatically under the [NAME_19] notwithstanding that one of my ancestors accepted scrip.” By which I understand him to mean that, but for the discrimination based on gender faced by female status Indians – which caused is grandmother to lose status when she married a non-status Indian – he would have been on the [NAME_23] maintained by Canada and the [NAME_123] when the 1987 Membership Code came into effect and, therefore, automatically on the [NAME_29] under the [NAME_19]. [ 102 ] I would note here in passing that while the [NAME_17] raises issues such as [NAME_2]’s failure to have caused the amendment of and to provide her long form birth certificate and the veracity of [NAME_5]’s father’s affiliation with [NAME_17], the [NAME_17] does not substantially challenge that the Applicants, and others in similar situations, were subject to prior discrimination based on sex. The [NAME_17] does not dispute that the Applicants, and other members of their group, are not eligible for automatic citizenship under the [NAME_19] because the prior discriminatory provisions of the Indian Act , as echoed in the 1987 Membership Code, precluded them from previously being eligible for membership and therefore automatic citizenship. [ 103 ] Rather, they submit that the Court is not being asked to evaluate whether the Applicants were discriminated by Canada when they lost their status or whether the Applicants were discriminated against under the 1987 Membership Code. Their challenge is to the entire [NAME_19] – pursuant to which they would likely be eligible for citizenship if they were to apply – and the consideration of which under the [NAME_19] does not discriminate based on sex. [ 104 ] To my mind, this misses the point that the Applicants are making, being that they would not have to apply for citizenship under the [NAME_19], but for the prior historic discrimination, which detrimentally impacts their eligibility for automatic membership under the [NAME_19]. [ 105 ] I do not agree with the [NAME_17]’s argument that the Applicants “cannot rely on” discrimination that was imposed on them by Canada prior to 1985 (specifically, that [NAME_2]’s mother, [NAME_132], is not a party to this proceeding and the Court is not evaluating whether she was discriminated against by Canada or the [NAME_17]) or that the sole question is whether the [NAME_19] now in force discriminates against the Applicants. In my view, such a narrow and isolated perspective cannot succeed. The Applicants have established a link or nexus between the [NAME_19] provision pursuant to which they are not afforded automatic citizenship and its discriminatory impact. Further, as held in [NAME_119] , the impugned law need not be the only or dominant cause of the disproportionate impact (para 45). Given the historic context of the [NAME_19] – that is, the prior discriminatory Indian Act provisions echoed in the 1987 Membership Code which caused the Applicants not to be eligible for automatic citizenship under the [NAME_19] – the exclusion of the Applicants and their [COMPANY_122] contributes to that pre-existing discrimination. [ 106 ] In this matter, the grandfathering in, or acquired rights requirement of the Indian Act, likely explains why the [NAME_19] creates a distinction between those who had citizenship under the 1987 Membership Code and are granted automatic citizenship under the [NAME_19] and those that were excluded from citizenship under the 1987 Membership Code and must apply for citizenship under the [NAME_19]. As the [NAME_17] argues, not all of those who must apply for citizenship are individuals who have been discriminated against based on sex. However, as I found in [NAME_20] , the 1987 Membership Code discriminated against the applicants in that matter and other [NAME_17] community members on the basis of sex, contrary to section 15 of the Charter . Therefore, there is a group of individuals – including the Applicants – who were discriminated based on sex and the [NAME_19] creates a distinction as those individuals are required to apply for citizenship and are also subject to a period of restricted rights if granted citizenship. The claimant group is therefore those who were previously denied membership due to discriminatory provisions limiting passing status through the maternal line and who therefore must apply for membership under the [NAME_19]. The [COMPANY_122] is those who receive automatic membership under the [NAME_19] and were not denied membership as status was passed through the paternal line. [ 107 ] In addition to the Applicants’ submissions on the application process and Restricted Rights Period being discriminatory, they submit that section 15.03 establishes an outright ban on citizenship for individuals whose ancestors had accepted M é tis scrip, even if they are a direction descendant of an original [NAME_23] member. This restriction would not apply to the existing members with an ancestor who accepted scrip as they would have a right to automatic membership. [ 108 ] This submission by the Applicants is based on a different claimant and [COMPANY_122] than the one set out above based on the distinctions found in [NAME_20] . Without a more fulsome factual background and submissions on whether a distinction is being made with respect to those who accepted M é tis scrip, the Applicants have not met their onus on this stage of the test. On the record before me, I cannot find that this first step of the section 15 step is met for the subgroup of individuals whose ancestors had accepted M é tis scrip. [ 109 ] In summary, the first step of the section 15 test asks whether the impugned provisions create or contribute to a disproportionate impact on the claimant group based on a protected ground as compared to other groups. In this matter, the Applicants have established that the [NAME_19] contributes to the disproportionate historic adverse impact on them of discrimination based on sex by requiring them to apply for citizenship and, if granted, being subject to the Restricted Rights Period. [ 110 ] That is, the first part of the section 15 test has been met for those who were previously denied membership due to discriminatory provisions limiting the passing of status through the maternal line and who, therefore, must apply for membership and, if granted, be subject to a period of restricted rights under the [NAME_19]. iii. Section 15 Test – Step Two Applicants’ Position [ 111 ] On the second step of the section 15 test, the Applicants submit that the [NAME_19] imposes burdens and denies benefits to a disadvantaged group on an arbitrary basis. The burdens and restrictions are contained in section 12 of the [NAME_19]. The application process, combined with the restrictions imposed, amounts to an unfair burden. Conversely, those who are afforded automatic citizenship do not need to go through the application process, do not need to justify their connection or contributions to their community, and are not subject to the potential of a protest meeting. Further, the Restricted Rights Period is an unfair burden. The Applicants, even if granted citizenship, are denied benefits such as housing and funding for five years without any reasonable justification. They are also denied political rights to run for office for up to seven years after being approved as citizens. The Applicants rely on [NAME_145] v Canada (Minister of Indian and Northern Affairs) , 1999 CanLII 687 ([NAME_94]); [NAME_146] v [NAME_147] , 2006 FC 1088 and [NAME_22] to argue that the same discrimination is being perpetuated by the [NAME_19] as descendants of [NAME_27] who happen to be women are treated differently and treated as less deserving of entitlement to participate in [NAME_23] governance on an arbitrary basis. The [NAME_17]’s position [ 112 ] The [NAME_17] reiterates that the [NAME_19] does not make any distinction based on sex/gender. While there is a distinction made between the rights of current citizens and new citizens (and with respect to the Métis scrip provision), this is not a distinction on the basis of sex/gender. However, in the event the Court finds that there is an adverse impact on the basis of sex/gender through one of the impugned provisions, the [NAME_17] submits that any such distinction is not discriminatory in that it does not impose burdens or deny benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. [ 113 ] The [NAME_17] submits that one of the primary purposes of the [NAME_19] is to provide a process that would allow descendants of disenfranchised women to apply and regain their citizenship in the [NAME_17]. The aim of the law is not to perpetuate disadvantage but, on the contrary, to rectify the historic disadvantage by creating a process to allow people like the Applicants to apply for and obtain citizenship. While the Applicants appear to be of the view that the only acceptable process to address this circumstance was to make everyone automatic members, the [NAME_17] submits that the process established through the [NAME_19] is a reasonable process for re-integrating those disenfranchised [NAME_27]. Ultimately, the Applicants have not demonstrated that any distinction based on sex/gender has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Analysis [ 114 ] The second step of the subsection 15(1) test requires the claimant to establish that the impugned law imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the historic or systemic disadvantage against that group ( [NAME_119] at para 54). [ 115 ] The Supreme Court of Canada described the question at this stage as ( [NAME_125] at para 71): ...The question is whether the lines drawn are generally appropriate, having regard to the circumstances of the groups impacted and the objects of the scheme. Perfect correspondence is not required. Allocation of resources and legislative policy goals may be matters to consider. The question is whether, having regard to these and any other relevant factors, the distinction the law makes between the claimant group and others discriminates by perpetuating disadvantage or prejudice to the claimant group, or by stereotyping the group. [ 116 ] The analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. This is a contextual analysis grounded in the actual situation of the group and the potential of the impugned law to worsen their situation ( [NAME_119] at para 52). In that regard, in [NAME_119] the Supreme Court held that to determine whether a distinction is discriminatory under the second step, courts should also consider the broader legislative context: [ 57 ] Such an approach is well‑supported in our jurisprudence. In [NAME_148] v. [NAME_62] , 1998 CanLII 816 ([NAME_94]), [1998] 1 S.C.R. 493, this Court held “[t]he comprehensive nature of the Act must be taken into account in considering the effect of excluding one ground from its protection” (para. 96). Similarly, in [NAME_125] , the analysis was said to entail consideration of “the full context of the claimant group’s situation and the actual impact of the law on that situation” (para. 43). Where the impugned provision is part of a larger legislative scheme (as is often so), the Court explained, that broader scheme must be accounted for (para. 3), and the “ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis” (para. 38 (emphasis added)). In [NAME_94] , Abella J. harboured “serious doubts” that the impugned law imposed arbitrary disadvantage, particularly after considering the context of the relevant legislation “as a whole” (para. 28). [ 58 ] Most recently, in [NAME_124]. , the constitutionality of s. 37(10) of the Youth Criminal Justice Act , S.C. 2002, c. 1 (“ YCJA ”) was at issue.   The impugned provision did not provide young persons an automatic right of appeal to this Court where an appellate judge below dissents on a question of law, as the Criminal Code provides to adult offenders. Chief Justice Wagner, writing for four members of this Court, explicitly and carefully considered the entire legislative scheme, observing that the YCJA is designed to balance multiple goals — not only enhanced procedural protections, but also timely intervention and prompt resolution (para. 146). He further explained that an “approach requiring line‑by‑line parity with the Criminal Code without reference to the distinct nature of the underlying scheme of the YCJA  would indeed be contrary to the contextual approach” (para. 145). In choosing not to provide young persons with an automatic right to appeal, he concluded “[NAME_63] did not discriminate against them, but responded to the reality of their lives” (para. 162). Therefore, step two was not satisfied. We would endorse this approach, as it is consistent with [NAME_125] , [NAME_94] , and [NAME_148] . [ 59 ] Relevant considerations include: the objects of the scheme, whether a policy is designed to benefit a number of different groups, the allocation of resources, particular policy goals sought to be achieved, and whether the lines are drawn mindful as to those factors ( [NAME_125] , at para. 67; see also paras. 3, 38, 40 and 81). [ 117 ] Finally, the Supreme Court addressed the scope of the state’s obligations to remedy social inequalities, noting two relevant principles in that regard. First, that subsection 15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation. Were it otherwise, courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers. Second, that when the state does legislate to address inequality, it can do so incrementally. [ 118 ] The [NAME_17] submits that for years, Canada defined [NAME_17]’s membership according to Canada’s definitions. This resulted in members being disenfranchised, disconnected from the community, and threatened the survival of the [NAME_17]’s unique culture. Both the Applicants and the [NAME_17] are victims of these policies. The [NAME_17] submits that it is rectifying this through its new [NAME_19] that sought to balance various competing objectives. After much deliberation and debate in the community, the [NAME_19] created an application process for new citizens and provided clear definitions as to who qualified for citizenship in the [NAME_17]. [ 119 ] The [NAME_17] describes how the [NAME_19] was developed. In that regard, the affidavit of [NAME_53] states that around 2021 a membership [NAME_38] [[NAME_38]] was established to review and consult with the [NAME_17] about membership issues, the goal being to develop a membership code that would be inclusive and reflective of the [NAME_17]’s culture and traditions. She put her name forward and was selected as a member of that [NAME_38]. The [NAME_38] also included [NAME_55], who is a non-citizen, as seen from her affidavit. [ 120 ] [NAME_53] deposes that a consultant was engaged to assist with this process and that there were a number of meetings held to discuss membership, including what it means to be a member and what the [NAME_38] members felt should define a [NAME_17] member. There were also discussions about the rights and responsibilities of members and how steps could be taken to protect the [NAME_17]’s culture, traditions and values. From the initial sessions with the consultant, the [NAME_38] moved into consultations with [NAME_27]. Members were engaged and provided feedback about the proposed membership requirements. The court challenge in [NAME_20] triggered further discussions about the definition of membership, how prospective members could be required to establish proof of their entitlement to membership, and other important issues. This also triggered discussions about the discrimination created by Canada that was alleged by the applicants in that proceeding. [ 121 ] [NAME_53] deposes that the membership consultations became an increasingly important priority and the [NAME_38] held consultations meetings on reserve, off reserve, and at various different cities in both [NAME_62]. For example, between March 24 and May 30, 2023, twelve such consultation meetings were held. [NAME_149] deposes that during these meetings members were engaged and proposed various changes and additions to the draft membership code that was being developed. Further, that all of the draft membership code provisions were discussed and some of them were debated extensively. She states that the challenge with an exercise of that type was to try and balance the different viewpoints and come to a consensus about what the [NAME_17], as a community, viewed as being appropriate and reflective of [NAME_17] culture, customs, traditions, and values. Further: 16.The process of reclaiming our traditional law making authority takes a lot of effort and time, is gradual, and requires a great deal of work within our community. The probationary membership rules are reflective of this process. We want to re-integrate members that were taken from us through colonialism or were otherwise disconnected from our community. However, it was apparent from our consultations with members, that this cannot happen overnight. We determined that we need processes to ensure that a re-integration process could be gradual for new citizens and permit us to maintain our community’s values and to teach these new members about our culture and history. …..

19. The [NAME_19] meets important objectives of [NAME_10] which include: 1) creating a fair application process for the privilege of being granted citizenship based on connection to the community; 2) allowing all eligible applicants to apply and be approved, regardless of gender or marriage; and 3) protecting, preserving, and creating a process and structure that does not allow citizenship for those with little or no connection to the [NAME_15], but maintains the distinctiveness of [NAME_10], its Cree heritage, culture, traditions, customs, and values for the present and future generations. [ 122 ] The [NAME_17] submits that, ultimately, the considerations in the [NAME_19] reflect a balancing of a number of competing objectives. The [NAME_17] recognizes the harms caused by Canada’s discriminatory policies, including Canada’s discrimination against women. The [NAME_19] seeks to rectify that by permitting these prospective citizens to apply and be eligible to obtain [NAME_17] citizenship. [ 123 ] Further, that the [NAME_17] also operated within certain legal constraints that continue to be imposed by Canada. Specifically, subsections 10(4) and 10(5) of the Indian Act protect “acquired rights” and prohibit the [NAME_17] from adopting a membership code that would remove people from the list the 1985 Amendments restored to the list (citing [NAME_23] v Canada , 1997 CanLII 5294 ([NAME_94]) at para 2).

Accordingly, while the Applicants assert that the [NAME_17] improperly gave some categories of individuals “automatic” citizenship, while others had to submit an application, this is required by Canada’s legislation – those with acquired rights cannot be removed from the [NAME_29] and made to re-apply. At the same time, the [NAME_17] could not make everyone on the [NAME_28] automatically a citizen since no one knows if all of those individuals even want to be citizens of the [NAME_17]. [ 124 ] The [NAME_17] submits that other concerns identified by [NAME_68] relate to potential members that are seeking only the financial benefits of citizenship without any interest in its corresponding responsibilities of citizenship. For example, the [NAME_17] recently received an offer exceeding $150 million from Canada to settle an outstanding treaty obligation. This has caused a recent “surge of interest” from people who are now claiming they are entitled to citizenship in the [NAME_17]. This includes people that were previously involved with other First Nations or Métis organizations. [ 125 ] This assertion stems from the affidavit evidence of [NAME_48], specifically her evidence that:

9. In addition, since [NAME_17] has received an offer from Canada to settle an outstanding Treaty obligation for $150,000,000.00, there has been a recent surge of interest from many people who are now claiming they are entitled to citizenship in [NAME_17] including declaring their interest in running for office of Chief or Council who previously had no interest in [NAME_17] or who were previously advocating on behalf of other Indigenous groups such as the Metis organization or other First Nations. [ 126 ] The [NAME_17] submits that this was the rationale behind the Probationary Period and Restricted Rights Period in the [NAME_19]. And, overall, the [NAME_19] sought to balance various concerns and interests of the [NAME_27]. [ 127 ] In addition to the [NAME_17]’s evidence as to the context of the [NAME_19], it is also of note that the “statement of intent and notice” contained in section 1.0 of the [NAME_19] includes that: 1.03 [NAME_68] has jurisdiction over Citizenship as an essential function of government and self-determination, based upon its unique culture, traditions, values, heritage and history. 1.04 Citizenship is a core jurisdiction that should be maintained through customary and traditional processes and a determination of Citizenship is integral to [NAME_68]. 1.05 Determination of Indian status and Citizenship based on gender as set out in the Indian Act has been found to be discriminatory by courts in various jurisdictions and is contrary to the United Nations International Covenant on Civil and Political Rights. 1.06 This [NAME_19] is enacted to reflect [NAME_68] determining its own Citizenship in accordance with its historical practices, culture, traditions, values, heritage, history, and inherent rights. 1.07 This [NAME_19] and its processes shall be interpreted and applied in accordance with principles of fundamental fairness including rules of natural justice, inherent customary laws, and traditions and values of [NAME_68]. 1.08 This [NAME_19] shall not be interpreted as contrary to s. 15 of the Charter of Rights and Freedoms. [ 128 ] Further, section 6.01 describes the purpose of the [NAME_19], being to set out rules: to determine who may or may not enjoy the privilege of being a citizen; to establish, maintain, and administer the [NAME_29]; to protect the continued existence of the citizens of the [NAME_17]; and, set out the rights possessed by those who enjoy the privilege of being a citizen of the [NAME_17]. [ 129 ] The [NAME_19] also sets out factors for Council to consider when deciding whether to accept an application for citizenship that bear in mind the available resources: a) [NAME_68] has sufficient resources to address and protect the health, welfare and social well-being of all of its existing Citizens; b) [NAME_68] has sufficient resources to address all current social, housing, health and welfare of its existing Citizens; c) [NAME_68] has sufficient housing, land, and other resources to accommodate new Citizens; d) [NAME_68]-owned entities that support various community investments and Citizenship initiatives are not compromised as a result of accommodating new Citizens; and e) any other considerations or information the Council deems material or relevant to its decision whether to approve the application of new Citizens. (section 18.08) [ 130 ] I accept that in drafting and crafting the [NAME_19], the [NAME_17] attempted to balance granting citizenship to potential applicants and fairness to the community as a whole. The statement of intent illustrates there was no intent to discriminate based on gender, which was recognized as a live issue. Rather, the intent was to reflect the [NAME_17] determining its own citizenship in accordance with its historical practices, culture, traditions, values, heritage, history, and inherent rights. Further, the [NAME_17] found that it was required to grandfather in all existing members, as discussed above. Faced with this, it chose not to automatically grant membership to all individuals on the [NAME_28] list, some of whom were previously denied membership because of past gender discrimination, as it did not know whether everyone on that list was interested in becoming a member. I also note that, when cross-examined, [NAME_46] explained that in 2020 there were approximately 2,000 eligible adults on the [NAME_28] list but only approximately 700 of them are on the [NAME_17] voter list. Thus, granting automatic citizenship to everyone on the [NAME_28] list would have the effect of nearly tripling [NAME_17] citizenship overnight. When appearing before me, the [NAME_17] also argued that unintended consequences could potentially arise from unilaterally granting membership to the remaining approximately 1,300 individuals. [ 131 ] In sum, I accept that the [NAME_17], for the purpose of protecting its culture, traditions and values, developed a process whereby individuals who do not automatically have citizenship can apply to obtain citizenship. [ 132 ] Having considered the context of the [NAME_19], the question is whether the distinction created between those individuals that need to apply, and if granted are subject to limitations such as the Restricted Rights Period, and those that are granted automatic citizenship creates a burden or denies benefits that reinforces, perpetuates, or exacerbates disadvantage. [ 133 ] Section 18.03 of the [NAME_19] requires applications for citizenship to include the following documentation: birth certificate; status under the [NAME_28] [NAME_23] of Indian Registry maintained by [NAME_28]; marriage or divorce certificate; a genealogy chart that includes the names of the applicant’s parents and grandparents; a criminal record and vulnerable sector check; agreement that the applicant will not be entered on the [NAME_29] and be a citizen until they complete the application process ; a current address for service; and, such further and other information as may be required by the [NAME_30] or Council. [ 134 ] A completed application will be reviewed by the [NAME_30]. The Panel will advise, in writing, of their recommendation as to whether to approve the application based on whether they are satisfied or not that: i) the person is duly eligible for citizenship; ii) the applicant is of good character; and iii) granting of citizenship will not be harmful, detrimental, or contrary of the interests of [NAME_68] (s 18.07). Upon receipt of that recommendation, Council will decide whether to approve or deny the application. Council can take into consideration the recommendations of the [NAME_30] and choose to dismiss or adopt those recommendations upon considering the factors set out in section 18.08. [ 135 ] In terms of the requirement to submit an application with the specified documentation, I am not persuaded that the burden of doing so is such that it amounts to a burden that exacerbates or perpetuates disadvantage of those individuals who are not automatically granted citizenship. The application process is not onerous. It applies to every individual who seeks citizenship, not just those within historically discriminated against group. The application process itself does not discriminate on the basis of sex/gender. The application process achieves the objective of initiating a process by which citizenship can be obtained by those who were previously discriminated against by way of the 1987 Membership Code, and others. And, although there is risk that citizenship will not granted, there is also an appeal mechanism. [ 136 ] I note that to be eligible for citizenship an individual must be a status Indian. The acquiring of that status also requires the making of an application. Specifically, subsection 5(5) of the Indian Act states that to be registered on the Indian Registry the name of an individual who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar ( Indian Act s 5(5)). [ 137 ] Bearing in mind the legislative intent discussed above and the balance between admitting citizens while maintaining the integrity of the community, I conclude that in these circumstances the requirement to apply for citizenship does not, in and of itself , impose a burden or deny a benefit that reinforces, perpetuates, or exacerbates disadvantage. [ 138 ] While the Applicants challenge the [NAME_19] as a whole, this is based on the distinction between automatic citizenship and the requirement to apply for citizenship. Because I have found that the requirement to apply for citizenship does not impose a burden that perpetuates disadvantage on historically discriminated against prospective citizens, I do not agree that the whole of the [NAME_19], for that reason, infringes section 15 of the Charter . Nor do its specific provisions that pertain to the automatic right of citizenship (section 7) and the requirement to apply for citizenship (sections 8 and 18). [ 139 ] I note in passing here that while the Applicants also list in the Notice of Application and the Notice of Constitution Question sections 9 and 19 of the [NAME_19], these are concerned with the additional citizenship criteria that will be considered when an application is made (but which are not necessarily determinative (section 9)) and notice of approval/denial of the application (section 19). While these sections are concerned with the process of determining an application, they are not concerned with the distinction between automatic citizenship and the requirement to apply for citizenship. Nor are they specifically addressed in that context by the Applicants.

Accordingly, they will not be further addressed in these reasons. [ 140 ] However, there is also the discretionary Probationary Period. Under section 12.01, Council may impose a period of probationary conditional citizenship of a maximum of two years so that the applicant can have the opportunity to establish or re-establish social and cultural ties with [NAME_68], to learn [NAME_68]’s customs, traditions, values, heritage and history and otherwise adopt the way of life of [NAME_68]. At the end of the Probationary Period, or sooner, if agreed by the applicant and Council, citizenship can be granted. [ 141 ] This is followed by the Restricted Rights Period, which is mandatory. Under section 12.02, for the first five years from “conditional acceptance,” new citizens who have completed any imposed probationary period are not eligible to: a) run for office of Council in any [NAME_150]; b) receive any per capita distribution payments issued by [NAME_68] from any source; c) receive funding of any kind from any monies distributed or granted from [NAME_68] for any purpose including but not limited to funds from any Trust Agreement, for educational purposes, or for community development purposes; and d) receive services in relation to housing matters including making applications to receive housing owned and managed by [NAME_68]. [ 142 ] In my view, the optional Probationary Period does not deny a benefit that reinforces, perpetuates, or exacerbates disadvantage. In an attempt to ensure its citizens understand and adopt its customs, traditions, values, heritage and history, the [NAME_17] can choose which prospective applicants require re-integration and which applicants are already sufficiently integrated and do not require such a period. The period is a maximum of two years and can be shorter or even eliminated. [ 143 ] This would mean that applicants like [NAME_2], who have lived on the [NAME_17] reserve for significant periods of or their entire life, who have a clear connection to the community and who have only been denied automatic citizenship because of the past discrimination based on sex – which discrimination this is explicitly recognised in the [NAME_19] – could be granted immediate citizenship without a Probationary Period. All that is required is that they apply. For other citizenship applicants, the [NAME_17] could more gradually allow them to be granted citizenship by utilizing the application process and Probationary Period. [ 144 ] I do not reach the same conclusion with respect to the mandatory Restricted Rights Period. While this is also temporary, it is in addition to the Probationary Period, it is much longer and it applies to all prospective applicants without affording Council the discretion to shorten or remove it. In my view, for the category of individuals, including the Applicants, who have previously been prohibited from obtaining membership based on discriminatory provisions that violate section 15 of the Charter , a mandatory restriction of rights once citizenship is granted is a burden and denies a benefit perpetuating disadvantage. [ 145 ] There is no evidence in the record before me which explains why a five year Restricted Rights Period – in addition to the two year Probationary Period which is explicitly described as providing an opportunity to establish or re-establish social and cultural ties with the [NAME_17], to learn its customs, traditions, values, heritage and history and otherwise adopt its way of life – supports the legislative purpose of the [NAME_19]. It would appear that the purpose of reintegration, including preventing admission of those who may only be seeking to benefit financially from citizenship can be achieved by the optional Probationary Period. In my view, an additional five-year restriction on political, funding and housing rights, once the requirements for citizenship have been met and citizenship has been granted, even in light of the legislative intent, denies a benefit and perpetuates disadvantage on historically discriminated against prospective citizens. [ 146 ] Therefore, I conclude that under the second step of the section 15 analysis, the mandatory Restricted Rights Period under section 12.02 of the [NAME_19] , infringes the guarantee of equality under subsection 15(1) of the Charter . Issue 3: Does section 25 of the Charter act as a shield? Applicants’ Position [ 147 ] The Applicants written submissions on section 25 of the Charter predate the Supreme Court’s decision in [NAME_32] and are not detailed. They include the following:

37. Even if it is found by the Supreme Court to be appropriate for Indigenous Nations to discriminate based on residency requirements or other grounds, this case is about discrimination on the basis of sex. Section 28 of the Charter , expressly provides that notwithstanding anything else in the Charter, including s. 25, the rights referred to are guaranteed equally to men and women. Section 28 prohibits [NAME_12] from invoking s. 25 to shield against discrimination based on sex ( [NAME_35] at para 6). … 39. Additionally, even if establishing rules of citizenship was an Aboriginal right under s. 35 of the Charter , s. 35(4) prohibits sex based inequality of Aboriginal rights. Subsection 35(4) of the Constitution Act, 1982 makes it clear that all aboriginal and treaty rights are guaranteed equally to male and female persons. Indigenous Nations cannot deny Aboriginal rights based on gender, even under s. 35. [ 148 ] When appearing before me, the Applicants acknowledged the purpose of section 25 as described in [NAME_32] (see para 143) as well as the framework for assessing “other rights” under section 25 ( [NAME_32] at paras 178-183) which the Applicants submitted is difficult to achieve and that the [NAME_17] has not done so in this case. The Applicants submitted that the Indigenous difference that the [NAME_17] attempts to illustrate is a continuation or echo of the colonial distinction. While there may be an Indigenous difference that the [NAME_17] is attempting to protect, the onus of proof is on the [NAME_17]. And, even if an “other right” is established, the [NAME_17] has not established an irreconcilable conflict as required by the third element of the [NAME_32] framework ( [NAME_32] at paras 161, 181). The Applicants argued that section 15 and section 25 of the Charter could be reconciled, pointing to [NAME_20] , by giving the [NAME_17] the opportunity to come back with a solution. This shows the possibility of dual compliance. [ 149 ] As to the fourth element, the Applicants submit that in this case, section 28 of the Charter and section 35(4) of the Constitution Act, 1982 are clear limits on any protection provided by section 25. The Applicants also note that in [NAME_32] the Supreme Court expressed that great caution should be exercised when the claim is brought by an Indigenous person against their own community so as to avoid unnecessarily or unwittingly imposing incompatible ideas or legal principles upon the distinctive Indigenous legal system (at para 172). The [NAME_17]’s position [ 150 ] The [NAME_17] submits that it has an “other right” to determine its citizens and define the criteria for citizenship in [NAME_68]. The “other right” is similar to that found in [NAME_32] described as “a right to restrict the membership and composition of its governing bodies” as well as in [NAME_95] . Here, the [NAME_17] submits that First Nations have a right to define their citizens and set criteria for citizenship. This qualifies as a right under section 25 of the Charter because it protects Indigenous difference (citing [NAME_32] at para 204). [ 151 ] The [NAME_17] emphasizes that the right of a [NAME_14] to define itself and set the criteria for its citizenship speaks to sovereignty and is fundamental. It notes that this right is expressly recognized in the United Nations Declaration on the Rights of Indigenous Peoples [UNDRIP] Article 33. UNDRIP has been received in Canada and is affirmed as a source for the interpretation of Canadian law ( United Nations Declaration on the Rights of Indigenous Peoples Act , SC 2021, c 14, Preamble). Additionally, it would be a component of the right to self-government which has also been recognized by [NAME_63] ( An Act Respecting First Nations, Inuit and Métis children, Youth and Families , SC 2019, c 24, ss 8, 18; see Reference re An Act respecting First Nations, Inuit and Métis children, youth and families , 2024 [NAME_94] 5 at paras 56-66). [ 152 ] The [NAME_17] disagrees with the Applicants that section 25 of the Charter has no application due to section 28. It submits that the Applicants have not demonstrated that each of the provisions they impugn create a distinction on the basis of sex/gender. [ 153 ] The [NAME_17] submits that its right to define the criteria for membership cannot be reconciled with the Applicants’ request to remove that right and return [NAME_17] citizenship decisions to the Minister. In this circumstance, section 25 operates as a shield of the [NAME_17]’s collective rights and that the Applicants’ Charter challenge can be dismissed on this basis. [ 154 ] The [NAME_17] submits that it adopted the [NAME_19] pursuant to its right to decide who is a member of its [NAME_15]. It must be given the constitutional protection afforded by section 25 to self-determine and make decisions about the community’s collective needs. Analysis [ 155 ] In [NAME_32] , the Supreme Court of Canada described the purpose of section 25 as “ensuring that the designated rights and freedoms of Indigenous peoples are protected where giving effect to conflicting individual Charter rights and freedoms would diminish Indigenous difference” (at para 117, see also paras 107, 143). Where the application of an individual right would undermine in an essential or non-incidental way the Indigenous difference protected by the collective right, section 25 directs that the collective right be given primacy (para 143). [ADDRESS] went on to set out a framework to be applied when a party is seeking to invoke section 25 in the face of a Charter claim: [ 179 ] First, the Charter  claimant must show that the impugned conduct prima facie  breaches an individual Charter right. If no prima facie  case is made out, then the Charter  claim fails and there is no need to proceed to s. 25. [ 180 ] Second, the party invoking s. 25 — typically the party relying on a collective minority interest — must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under s.

25. That party bears the burden of demonstrating that the right for which it claims s. 25 protection is an Aboriginal, treaty, or other right. If the right at issue is an “other” right, then the party defending against the Charter claim must demonstrate the existence of the asserted right and the fact that the right protects or recognizes Indigenous difference. [ 181 ] Third, the party invoking s. 25 must show irreconcilable conflict between the Charter right and the Aboriginal, treaty, or other right or its exercise. If the rights are irreconcilably in conflict, s. 25 will act as a shield to protect Indigenous difference. [ 182 ] Fourth, courts must consider whether there are any applicable limits to the collective interest relied on. When s. 25’s protections apply, for instance, the collective right may yield to limits imposed by s. 28 of the Charter or s. 35(4) of the Constitution Act, 1982 . [ 183 ] Finally, where s. 25 is found not to apply, the party defending against the Charter claim may show that the impugned action is justified under s. 1 of the Charter . [ 156 ] For the reasons set out below, I find that section 25 of the Charter does not act as a shield to the breach of subsection 15(1) of the Charter . Step 1 – prima facie breach [ 157 ] Having found above that a prima facie breach of section 15 of the Charter is established with respect to section 12.02 of the [NAME_19], this step is met. Step 2 – “other right” [ 158 ] The [NAME_17] submits that it has an “other right” to determine its citizens and define the criteria for citizenship in [NAME_68]. [ 159 ] To establish that a collective Indigenous right constitutes an “other right,” the [NAME_17] “must demonstrate the existence of the right and also show that the right, or its exercise, protects interests associated with Indigenous difference” ( [NAME_32] at para 209). [ 160 ] In [NAME_32] , the Supreme Court found that the adoption of a residency requirement in [NAME_33]’s [[NAME_151]] constitution, which required elected Chief and Councillors to reside on or relocate to [NAME_151]’s settlement lands, was an exercise of an “other right” under section 25. The [NAME_151] had a right to restrict the membership and composition of its governing bodies and its exercise of that right through the residency requirement, which protected interests associated with Indigenous difference. The Supreme Court concluded that, whether or not the residency requirement might also be understood as an exercise of an inherent right to self-government, it was an “other right” protected under section 25 ( [NAME_32] ,   at para 204). [ 161 ] In [NAME_95] , I found that the authority and right to effect and impose a residency requirement, which restricted the eligibility of [NAME_96] members to be nominated to run for office, arose by way of the that [NAME_14]’s Election Regulations, which was a statutory right and an “other right” under section 25 (at paras 97-104). Similarly, in [NAME_98] v [NAME_99] 150A , 2025 FC 1174 [ [NAME_98] 2025 ], I determined that the residency requirement in that [NAME_14]’s election regulations, which required electors to continuously reside on the [NAME_99] [[NAME_152]] reserve for at least six months prior to the date of their nomination to run for election to the positions of Chief or Councillor, unjustifiably infringed the applicant’s rights under section 15 of the Charter . However, the residency requirement was protected, or shielded, by section 25 of the Charter . As I had previously found in [NAME_95] , it was not necessary to determine whether the source of the “other right” arose from [NAME_152]’s inherent right of self-government. That was because one source of the “other right,” being the right to effect and impose the residency requirement, which restricted the eligibility of [NAME_152] members to be nominated to run for office, that is, the right to restrict the membership and composition of its governing bodies, arose by way of the election regulations, which codified [NAME_152] election customs. This was a statutory right as the exercise of [NAME_152]’s authority to govern via the election regulations stemmed from, and was tethered to, federal law, being the Indian Act ( [NAME_98] 2025 at para 46; [NAME_95] at paras 96-104). [ 162 ] My point here is that whether or not the [NAME_19] (in particular the right to determine and to define the criteria for citizenship), as the [NAME_17] suggests, may be an exercise of an inherent right to self-government, I need not make that determination. This is because one source of the authority and right to effect and impose the impugned provisions determining membership and limiting membership rights, arises by way of the [NAME_19], which is a statutory right and therefore an “other right” under section 25 of the Charter . While I appreciate that [NAME_95] and [NAME_98] concerned a right to restrict membership and composition in the context of the First Nations governing body, it appears to me that the same principle would apply with respect to the restriction of membership and membership composition of a [NAME_14] itself, which is governed by the [NAME_19] and section 10 of the Indian Act . [ 163 ] That said, the [NAME_17] must also establish that the right to determine its citizens and define criteria for citizenship protects Indigenous difference such that it should be protected from abrogation or derogation by the Applicants’ section 15 Charter right ( [NAME_32] at para 216). The Supreme Court of Canada explained the meaning and importance of Indigenous difference in [NAME_32] : [ 136 ] In [NAME_153] , Bastarache J. drew upon [NAME_154]’s view that the broad scope of the interests of the Indigenous peoples of Canada that may be recognized as constitutionally entrenched are those related to “[I]ndigenous difference”. [NAME_154] observed that Indigenous difference reflects “four complex social facts [that] lie at the heart of the relationship between Aboriginal people and the Canadian state” (p. 4). These are: “. . . Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, and Aboriginal participation in a treaty process . . .” (p. 4). … [ 138 ] Indigenous difference is an appropriate criterion for circumscribing the “other rights or freedoms” under s. 25 because it helps identify the contours of the provision’s protective purpose if there is a conflict with an individual Charter right. Indigenous difference connects the “other righ[t] or freedo[m]” to the collective minority interest that s. 25 is designed to serve. When Indigenous difference is not shown to underlie the competing collective interest, the ultimate justification for setting aside the individual Charter right falls away. The concept of Indigenous difference connects the “other rights” to the rest of s. 25 and gives content to what it means for a right or freedom to belong to or benefit — to meaningfully “pertain to” — the Aboriginal peoples of Canada. [ 164 ] The evidence before me on this point is limited. However, it is sufficient to demonstrate the [NAME_17]’s right to determine its citizens and define criteria for citizenship protects Indigenous difference, in that it helps to protect cultural differences in assuring its citizens are exposed to, learn and appreciate its culture and traditions – thereby preserving them – and that it may also protect Indigenous differences in that it relates to prior sovereignty as the [NAME_17] would have historically decided who are its citizens. Step 3 – irreconcilable conflict [ 165 ] The third step requires the Court to determine whether the [NAME_17] has established that the conflict between the two rights is irreconcilable, such that the section 25 right would be protected from the abrogation or derogation that would flow from giving effect to the Applicants’ section 15 right ( [NAME_32] at para 219). [ 166 ] The Supreme Court in [NAME_32] addressed the question of whether a Charter right and “other right” are irreconcilable including as follows: [ 164 ] In sum, s. 25 does not serve as a “shield” whenever a right falling within its scope is at issue. Rather, when a Charter  right is engaged by the exercise of an Aboriginal, treaty, or other right, courts must consider whether the two rights can be reconciled. If giving effect to a Charter  right would only affect incidentally or in a non‑essential manner the s. 25 identified right — in the sense that it would not undermine Indigenous difference — or if the Charter right can be interpreted in a manner consistent with the Aboriginal, treaty, or other right, then it would be inappropriate to give priority to the right within the scope of s.

25. It is only when the s. 25 right is affected in a non-incidental manner, thereby creating an irreconcilable conflict between the two rights, that s. 25 will protect the Indigenous right by rendering the individual right ineffective to the extent of the conflict. In this sense, s. 25 will sometimes function as what author [NAME_157] describes as a “pop up shield” (p. 13). At other times, it will have only an interpretive role. [ 167 ] The [NAME_17] submits that its right to define the criteria for membership cannot be reconciled with the Applicants’ request to remove that right and return the [NAME_17] citizenship decisions back to the Minister. Giving effect to the Applicants’ section 15 Charter  right, in the context of the [NAME_19] as a whole, would not affect only incidentally, or in a non‑essential manner, the [NAME_17]’s section 25 right to determine the criteria for membership and the members of the [NAME_17]. That is because it would undermine Indigenous difference. [ 168 ] The [NAME_17] submits that the Applicants’ approach is that either automatic citizenship is granted to all of the approximately 2,000 members listed in the [NAME_28] which would, overnight almost triple the current membership of 700 individuals, or the membership list be returned to [NAME_28] control. This demonstrates that the rights are irreconcilable. [ 169 ] The Applicants’ only submission regarding a method by which their individual section 15 Charter rights can be reconciled with the [NAME_17]’s collective section 25 Charter rights is that, because in [NAME_20] the 1987 Membership Code was sent back to the [NAME_17] to make another attempt at drafting a constitutional citizenship code, dual compliance is possible. [ 170 ] I agree with the [NAME_17] that, in light of the development of the [NAME_19], the Applicants’ request to return control of the [NAME_17]’s [NAME_29] to the [NAME_28] would be irreconcilable with the [NAME_17]’s right to define its membership. [ 171 ] However, in my view, this is not the only possible relief in this case. [ 172 ] Ultimately, and viewed broadly, in the context of section 25 of the Charter the [NAME_19] recognizes and serves to protect Indigenous difference by ensuring that individuals who wish to become Citizens are exposed to and learn about the [NAME_17]’s culture and traditions before being granted citizenship. And, by doing so, ensuring that those culture and traditions are preserved now and for future generations. Removing this requirement would undermine, in a non-incidental way, the [NAME_17]’s right to effect and impose law that determines who its citizens are the criteria for citizenship eligibility. That is, to decide on [NAME_17]’s membership. [ 173 ] That said, the [NAME_19] also includes section 12.02, the mandatory Restricted Rights Period, which goes beyond the more general purpose of the [NAME_19] and, unlike the application requirement and the section 12.01 Probationary Period, breaches the Applicants’ section 15 Charter right because it perpetuates the historic discrimination based on sex. I am not persuaded that that provision serves to protect Indigenous difference given that this is already protected by the section 12.01 permissive Probationary Period. Given this, and as will be discussed with respect to remedies, section 12.02 cannot stand. Step 4 – further limitations [ 174 ] In [NAME_32] , the Supreme Court held that even when section 25 of the Charter would otherwise prioritize an Aboriginal, treaty, or other right, there may be other relevant limitations on the application and effect of section 25. It noted as examples, section 28 of the Charter and subsection 35(4) of the Constitution Act, 1982 . “These provisions – which apply notwithstanding any other provision in the Charter or the Constitution Act , 1982, respectively – ensure that a right protected under s. 25 does not shelter gender-based discrimination” ( [NAME_32] at para 173). Stated another way, “the primacy afforded to the collective rights under s. 25 is subject to the equality guarantee for ‘male and female persons’ under s. 28 of the Charter and s. 35(4) of the Constitution Act , 1982” ( [NAME_32] at para 110). [ 175 ] However, the Supreme Court held that precisely demarcating the limits of section 25’s protections, including those resulting from other constitutional sources, was best left to cases when they arise on the facts ( [NAME_32] at para 173). [ 176 ] This is such a case. [ 177 ] The Applicants argue that section 28 of the Charter prohibits the [NAME_17] from invoking section 25 to shield against discrimination based on sex. They also argue that subsection 35(4) of the Constitution Act, 1982 (with respect to their section 35 submissions which are addressed below) makes it clear that all aboriginal and treaty rights are guaranteed equally to male and female persons. [ 178 ] The [NAME_17] argues that the Applicants have not demonstrated that each of the provisions they impugn create a distinction on the basis of sex/gender. Although the Applicants challenge the entire [NAME_19], they do not specify how provisions other than the grandfathering provision make a distinction based on sex/gender. [ 179 ] In [NAME_35] , [NAME_68] conceded that a voting policy and a prohibition against a person living in a common law marriage being eligible to run for Chief and Council in [NAME_68]’s election regulations, violated section 15 of the Charter (at para 158). Justice Favel also noted that issues surrounding the transmission of Indian status have been described as discrimination on the basis of sex (citing [NAME_25] , at paras 92-93). Similarly, he found that the voting policy created a distinction between [NAME_14] members due to the historical discrimination suffered by women who married non-status men (at para 159). On the second part of the section 15 test, Justice Favel found that the voting policy denied certain [NAME_14] members from participating in their community’s governance by denying them the ability to vote (at para 161). He concluded the voting policy infringed section 15 of the Charter on the basis of sex (at para 163). [ 180 ] With respect to the application of section 28 to section 25, he stated: [ 139 ] I agree with the Applicants that, in this particular case, section 25 of the Charter   does not shield the Bill C-31 Voting Policy or the Common-Law Marriage Prohibition. [ 140 ] First, section 25 cannot apply to shield the Bill C-31 Voting Policy because, as [NAME_158] concedes, the Bill C-31 Voting Policy discriminates on the basis of sex ( [NAME_25] ,   at paragraphs 87–94). Section 28 of the Charter   states that “notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” As noted by Justice Bastarache in [NAME_153] ,   [at paragraph 97] : Is this shield absolute? Obviously not. First, it is restricted by s. 28 of the Charter which provides for gender equality “[n]otwithstanding anything in this Charter”. Second, it is restricted to its object, placing Charter  rights and freedoms in juxtaposition to aboriginal rights and freedoms. R. v. [NAME_159] , 1996 CanLII 216 ([NAME_94]), [1996] 2 S.C.R. 507, at para. 46, provides guidance in that respect. [Emphasis added.] [ 141 ] Having found that the Charter   applies to [NAME_158]’s Election Regulations, section 28 clearly limits the application of section 25 with respect to the Bill C-31 Voting Policy. [ 181 ] Similarly in [NAME_39] , Justice Régimbald found that a voting prohibition contained in the First Nations election regulations violated section 15 of the Charter (at paras 105-111). He agreed with Justice Favel’s comments in [NAME_35] with respect to section 28 and 25 of the Charter and held that section 28 precludes distinctions on the basis of sex, that would not otherwise be protected under a section 25 asserted “aboriginal, treaty or other right” (para 122). [ 182 ] Applying this to the case at hand, given that the violation of section 15 with respect to the Restricted Rights Period was on the basis of sex, section 28 of the Charter prevents the [NAME_17] from utilizing section 25 as a shield to save that provision. Step 5 – section 1 of the Charter/ Issue 4 [ 183 ] This step also comprises the fourth issue identified in this matter, being if there is a breach of section 15, which is not shielded by section 25, whether the breach justified under section 1 of the Charter ? [ 184 ] I will address them together here. Applicants’ Position [ 185 ] The Applicants submit the discrimination cannot be justified under section 1 of the Charter . First, having established discrimination on the basis of sex under section 15 of the Charter , this ends the inquiry. This is because establishing discrimination on the basis of sex necessarily means that the [NAME_19] “fails to guarantee the Aboriginal right to be an Indigenous person and member of one’s own community to men and women equally, contrary to subsection 35(4) of the Constitution Act , 1982” . Given that subsection 35(4) is an absolute and unqualified right unrestrained by section 1 of the Charter , this ends the inquiry. [ 186 ] In the alternative, the Applicants submit that the limit is not justified under section 1 of the Charter . Applying the Oakes test ( R v Oakes , [1986] 1 SCR 103 at para 13), there is no pressing and substantial objective as the objects of the limitations on equality rights appear be based on generalized discriminatory beliefs. Even if there is a pressing and substantial objective, the limitations on the equality rights are not rationally connected to those purposes, nor are they minimally impairing. Finally, any salutary effects of the [NAME_19] are vastly counterbalanced by the deleterious impacts and result in the disadvantaged group bearing a completely disproportionate burden. The Applicants written submissions elaborate on each aspect of the Oakes test. The [NAME_17]’s Position [ 187 ] The [NAME_17] submits that if section 25 of the Charter does not shield the entirety of the [NAME_19], any breaches of section 15 would be saved by section 1. In that regard, one of the challenges arising from the Applicants’ position is that, while they appear to take issue with specific provisions of the [NAME_19], they seek to have the entire law declared unconstitutional, rather than just specific provisions. [ 188 ] The primary purpose of the [NAME_19], as a whole , is self-determination and the reclamation of the [NAME_17]’s customary law-making authority around citizenship. The [NAME_17] submits that permitting the [NAME_17] to define itself and move out of the colonial decision making that was imposed on them is a pressing and substantial objective. Another objective is to provide a process that permits anyone to apply and have their application considered, regardless of gender. [ 189 ] When drafting the [NAME_19], the [NAME_17] attempted to strike a balance between fairness to potential applicants but also fairness to the community as a whole. The compromise that was established is that potential citizens with connections to the [NAME_17] can re-apply, be fairly considered and have a period of time to re-integrate before becoming full citizens. This is a reasonable solution that minimally impairs the rights of the Applicants and others in their situation. As to the Restricted Rights Period, this is in place as a result of concerns that certain prospective members are only interested in the financial benefits of citizenship. Certain limitations imposed on citizenship for a period of time is meant to address this concern. It is a pressing and substantial objective. [ 190 ] The [NAME_17] submits that the [NAME_19] in general, and the impugned provisions in particular, all serve pressing and substantial objectives of the [NAME_17] including: (a) To restore and re-establish the [NAME_15]’s law-making authority and ensure that decisions about who is a Citizen are made by [NAME_68] – not by an external party like the government of Canada; (b) To rectify the historical discrimination that occurred against Indigenous women by giving them the right to apply and be made a Citizen, regardless of their gender; (c) To ensure that prospective Citizens are not only interested in the financial benefits of Citizenship, but are committed to participating and discharging the responsibilities of Citizenship; (d) To comply with legal constraints that continue to be imposed upon the [NAME_17] by the government of Canada, including requirements in the Indian Act that protect the acquired rights of certain categories of status Indians; [ 191 ] With respect to proportionality, the [NAME_17] submits that the means employed to meet the objectives are rationally connected, minimally impairing and proportionate. The “not particularly onerous” threshold of it being reasonable to suppose that the limit may further the goal has been met here with respect to the Restricted Rights Period, the grandfathering provision (automatic citizenship), the Métis Scrip Provision and the entire law as each will further at least one of the identified objectives. [ 192 ] Considering a range of reasonable options available to address the goal, the impugned provisions, and the law as a whole, minimally impair the rights of prospective citizenship applicants. The [NAME_17] submits that its laws are no more onerous than the laws of other First Nations regarding membership. [ 193 ] Finally, the [NAME_17] submits that the positive benefits of the [NAME_19] far outweigh any restrictions on the Applicants’ equality rights. The Applicants can apply for citizenship, the fact that it is not automatically granted is a minimal impact on their rights. Analysis [ 194 ] Section 1 states that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” [ 195 ] The Supreme Court of Canada re-stated the Oakes  test in Ontario (Attorney General) v G , 2020 [NAME_94] 38 [ Ontario v G ], as follows: [ 71 ] The Attorney General must establish, on a balance of probabilities, that the infringement of s. 15(1) is justified under s.

1. First, there must be a pressing and substantial objective for the infringing measure. Second, the infringing measure must not disproportionately interfere with s. 15(1) rights in furtherance of that objective. The second part of the Oakes test has three parts. The state must demonstrate the infringement is rationally connected to the objective, the means chosen to further the objective interfere as little as reasonably possible with the s. 15(1) right, and the benefits of the infringing measure outweigh its negative effects (see R. v. Oakes , 1986 CanLII 46 ([NAME_94]), [1986] 1 S.C.R. 103, at pp. 138‑40; [NAME_148] , at paras. 109‑10;  [NAME_62] v. [NAME_161] , 2009 [NAME_94] 37, [2009] 2 S.C.R. 567, at paras. 48, 53 and 76‑78). [ 72 ] The Attorney General’s burden is not to establish that the legislative scheme as a whole is a reasonable limit on s. 15(1) that can be demonstrably justified in a free and democratic society, but to justify the infringing measure itself . As this Court has underscored, “it is the infringing measure and nothing else which is sought to be justified” ( RJR‑[COMPANY_162]. v. Canada (Attorney General) , 1995 CanLII 64 ([NAME_94]), [1995] 3 S.C.R. 199, at para. 144; [COMPANY_164]. v. Canada , 2010 [NAME_94] 21, [2010] 1 S.C.R. 721, at para. 20). The objective of the infringing measure is thus the proper focus of the analysis; however, it may be necessary to situate the infringing measure in the context of the broader legislative scheme to understand the limitation’s function ( [NAME_148] , at para. 111). [ 196 ] I agree with the [NAME_17] that the Applicants’ decision to challenge the constitutionality of the whole of the [NAME_19], rather than those specific provisions with which it takes issue, is problematic. This is not a circumstance where, for example, the legislative jurisdiction of the [NAME_17] is challenged, thereby bringing the whole of the legislation into question (such as Reference re An Act respecting First Nations, Inuit and Métis children, youth and families , 2024 [NAME_94] 5). [ 197 ] And, as the Supreme Court stated in [NAME_118] , “it is the limitation on equality rights that must be justified, not the legislative scheme as a whole” (at para 125), citing Alliance at para 45: [45] ….Where a court finds that a specific legislative provision infringes a Charter right, the state’s burden is to justify that limitation , not the whole legislative scheme. Thus, the “objective relevant to the s. 1 analysis is the objective of the infringing measure, since it is the infringing measure and nothing else which is sought to be justified” ( RJR‑[COMPANY_162]. v. Canada (Attorney General) , 1995 CanLII 64 ([NAME_94]), [1995] 3 S.C.R. 199, at para. 144; R. v. [NAME_165]. , 2016 [NAME_94] 31 (CanLII), [2016] 1 S.C.R. 906, at para. 62)…… [ 198 ] I have determined above that the requirement to apply for citizenship does not, in and of itself, breach section 15 of the Charter . That is, that the Applicants are not discriminated against on the basis of sex because they must apply for citizenship rather than having it afforded to them automatically. The [NAME_19], unlike its predecessor the 1987 Membership Code, serves to provide a path forward to acquiring citizenship, all that is needed is that an individual apply. Nor is the Probationary Period infringing. [ 199 ] However, I have also found above that section 12.02, the mandatory Restricted Rights Period, does violates subsection 15(1) of the Charter . Therefore, only that provision will be considered for purposes of the section 1 analysis. However, that provision will also be considered in the context of the broader legislative scheme, the [NAME_19], in order to understand its function. [ 200 ] In order for the Restricted Rights Period to be a reasonable limit of the Applicants’ section 15 Charter right that is demonstrably justified, the [NAME_17] must establish that in implementing the restricted rights period, it was pursuing a pressing and substantial objective; the means chosen to implement that objective is rationally connected to the objective and must minimally impair the Charter  right; and, there is proportionality between the effects of the measure and the identified objective. [ 201 ] For the reasons set out below, I find that section 1 of the Charter does not justify the breach of subsection 15(1) by section 12.02 of the [NAME_19]. Pressing and substantial objective [ 202 ] As the Supreme Court of Canada stated in R v [NAME_165]. , 2016 [NAME_94] 31 [ [NAME_165]. ]: [ 61 ] A law that limits a constitutional right must do so in pursuit of a sufficiently important objective that is consistent with the values of a free and democratic society. This examination is a threshold requirement that is undertaken without considering the scope of the right infringement, the means employed, or the relationship between the positive and negative effects of the law. [ 203 ] The [NAME_17] submits that the primary purpose of the [NAME_19] is sovereignty, self-determination and the reclamation of the [NAME_17]’s customary law-making authority around citizenship. I accept this to be the purpose of the [NAME_19] based on the statement of intent (s 1.0); the declaration that the [NAME_17] is asserting its sovereignty collectively by the inherent right to determine its own [NAME_23] Citizenship based on genealogy, heritage, traditions, culture, values, customs and beliefs (s 3.01); and, the purpose of setting out rules to determine who can be a citizen, to establish and maintain the [NAME_29], protect the continued existence of citizens, and set out the rights of citizens (s 6.01). This primary purpose serves to provide context within which section 12.02, the Restricted Rights Period, is situated. [ 204 ] The Applicants do not directly address the overall purpose of the [NAME_19]. They submit that the [NAME_19] is being challenged as under inclusive and, therefore, the question is: was there a pressing a substantial objective that was satisfied by preserving the status quo of the [COMPANY_122], the existing citizens, while not extending that status to the discriminated against groups. [ 205 ] The Applicants acknowledge that protecting one’s cultural heritage could potentially constitute a pressing and substantive objective, but assert that this must be defined with the requisite specificity and cannot merely be overly abstract or idealized objectives. They submit that the cross-examination testimony of [NAME_48] and [NAME_53] provided overly abstract or idealized objectives that are incapable of clear definition. And, once probed tended to indicate that the purpose of the restrictions on prospective citizens was based more on a generalized fear of outsiders that manifested in exclusionary rules. When appearing before me, the Applicants also argued that protecting the [NAME_17]’s culture is a lofty objective but is overly broad and therefore cannot be protected by section 1 of the Charter ( R v [NAME_79] , 2022 [NAME_94] 18 at paras 115-116). [ 206 ] The Applicants submit that the objective of the restrictions on the Applicants’ section 15 rights in the [NAME_19] “is exactly what it appears to be, which is to restrict the rights of the Applicants, and those like them, based on generalized stereotyped beliefs and fears about the nature of the discriminated against group. It is based on a stereotyped belief that because of the sex of their parent or grandparent, they are less in tune with the culture of [NAME_12].” The Applicants submit that such an objective can never constitute a pressing and substantial one. [ 207 ] To the extent that the Applicants are asserting that the primary purpose of the [NAME_19], and its restrictive provisions, is to intentionally continue the discrimination based on sex that arose from the Indian Act and was continued in the 1987 Membership Code, I do not agree. The purpose of the [NAME_19] is apparent from its stated intent and declaration – which intent explicitly acknowledges the past discrimination based on gender arising from the Indian Act and states that it shall not be interpreted as contrary to section 15 of the Charter . Rather, as the [NAME_17] submits, it is apparent from the text of the legislation that its primary purpose is to assert sovereignty by controlling its [NAME_23] membership and, for that purpose, providing a path forward by way of the application process and providing rules around acquiring citizenship. [ 208 ] In that regard, the [NAME_17] submits, referencing the affidavit evidence of [NAME_53], that another objective of the [NAME_19] is to provide for a process that permits anyone to apply and have their application considered – regardless of gender. The law aims to “re-integrate members that were taken from [the [NAME_17]] through colonialism” . The [NAME_19] seeks to rectify that through an application process that permits anyone to apply and be considered. The [NAME_17] submits that while the Applicants wish to see a more drastic remedy to this issue that would automatically make anyone on the [NAME_28] a Citizen, the Citizens of the [NAME_17] decided on a more gradual process that would permit for all applicants to be considered on a case-by-case basis. Moreover, the grandfathering requirement (or acquired rights) meant that the [NAME_17] could not adopt a [NAME_19] that removed the membership of the existing members and obliged them to reapply. And, even if it could, the practical effect of this would be that when that law was passed there would be no [NAME_17] citizens. And, to give automatic citizenship to all of the members of the ICS list would immediately increase the citizenship population form approximately 700 individuals to approximately 2,000. [ 209 ] The [NAME_17] submits that balancing the rights of those that lost status due to discrimination with the rights of the collective is a difficult but necessary exercise. It notes that the Assembly of First Nations released a Discussion Paper (Assembly of First Nations, “Transition to First Nations Control of Citizenship” , (March, 2020) at 7, online (pdf): ) that illustrates the challenge with “automatic” citizenship rights for disenfranchised individuals and how that would impact the collective rights of the First Nations: Should First Nations be legally obliged to grant individuals citizenship, regardless of the cultural connection to the community? Viewed from the perspective of these individuals, it may seem unfair to be refused citizenship on the grounds of no cultural connection when this lack of connection is not due to their fault or choice but purely the result of discriminatory government policy. Indeed, this could be viewed as a re-entrenchment of the unconstitutional gender discrimination once present in the Indian Act . On the other hand, viewed from the perspective of First Nations collectivities, being forced to grant citizenship to individuals who have no connection to the modern-day culture of that community, and who in some cases have not experienced the lived reality of First Nations peoples in Canada, may be seen as the re-enactment of inequitable government policy. … [ 210 ] The [NAME_17] submits that it wrestled with this exact issue and tried to strike a balance between fairness to potential applicants, but also fairness to the community as a whole. The compromise that was established was that potential citizens with connections to the [NAME_17] can apply, be fairly considered, and have a period of time to re-integrate into the [NAME_17] before becoming full citizens. The [NAME_17] submits that this is a reasonable solution that minimally impairs the rights of people like the Applicants. [ 211 ] With respect to the Restricted Rights Period, the [NAME_17] submits it is concerned with prospective members that are only interested in the financial benefits of citizenship without any interest in the responsibilities of citizenship, citing as an example a recent surge of interest in citizenship following an offer from Canada to settle an outstanding treaty obligation. The [NAME_17] submits that this is the reason certain limitations of citizenship were effected and that this a pressing and substantial objective. [ 212 ] I note that in considering whether there is a pressing and substantial objective, the relevant objective is that of the infringing measure ( [NAME_166] v Canada (Attorney General) , 2019 [NAME_94] 1 [ [NAME_166] ] at para 46; [NAME_165]. at para 62). [ 213 ] Section 12.01, the Probationary Period restriction, has a similar objective to the entire [NAME_19] – being to determine who can be a citizen of the [NAME_17] based on tradition, culture, values customs and beliefs. The up to two year Probationary Period is not mandatory and explicitly states that its purpose is to permit an applicant the opportunity to establish or re-establish social and cultural ties with the [NAME_17], to learn the [NAME_17]’s customs, traditions, values, heritage and history and to otherwise adopt the way of life of the [NAME_17]. In my view, this is a pressing and substantial objective. [ 214 ] Section 12.02, the mandatory Restricted Rights Period, on the other hand, does not explicitly seek to preserve the [NAME_17] culture and way of life. It restricts, for the five years after the two-year Probationary Period, the eligibility of new Citizens to run for office, receive per capita distribution payments and to receive funding and housing services. While I appreciate the concern about individuals seeking citizenship solely for the purpose of financial gain and about running for office without knowledge of [NAME_17] customs and traditions, given the prior two-year Probationary Period, it is difficult to see how the further five-year Restricted Rights Period in section 12.02 has a different pressing and substantial objective. That is, a process for the gradual reintegration of individuals that are entitled to citizenship but who do not have connections to the [NAME_17] and its culture already exists by way of section 12.01 and there is no evidence in the record before me that explains why a further five years is needed to accomplish that objective. Rationally connected [ 215 ] The question at this stage is whether the Restrictive Rights Period in section 12.02 is rationally connected to the objective it was designed to achieve. “The rational connection step requires that the measure not be ‘arbitrary, unfair, or based on irrational considerations’ ( Oakes , at p. 139). Essentially, the government must show that there is a causal connection between the limit and the intended purpose ([NAME_167], at para. 153)” ( [NAME_166] at para 59). [ 216 ] I am not persuaded that the [NAME_17] has met its burden in this regard. Minimally impairing [ 217 ] The Supreme Court of Canada in [NAME_166] described this step as: [66] The second component of the proportionality test requires the government to show that the measure at issue impairs the right as little as reasonably possible in furthering the legislative objective ( [NAME_167] , at para. 160; Oakes , at p. 139). In other words, the measure must be “carefully tailored” to ensure that rights are impaired no more than is reasonably necessary ( [NAME_167] , at para. 160; Mounted Police Association , at para. 149). However, some deference must be accorded to the legislature by giving it a certain latitude: “If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement” ( [NAME_167] , at para. 160). [ 218 ] Similar to my findings above, because the section 12.01 Probationary Period serves to attain the objectives of the Restricted Rights Period, in the absence of any evidence explaining why a further additional, mandatory, period of restricted rights is required, I find that section 12.02 is not minimally impairing. [ 219 ] Further, section 12.02 captures not only those who may want to become citizens purely to avail of financial and other benefits or those who have no connections to the [NAME_17]. Section 12.02 also captures individuals who have been living on the [NAME_17] and have substantial connections to the community and culture and are not only applying to take advantage of financial benefits. And, as that provision is mandatory, and unlike the Probationary Period, there is no discretion of Chief and Council to waive the restricted rights periods for those individuals. [ 220 ] The optional Probationary Period in section 12.01 is a less impairing way of obtaining the objectives of providing a period of reintegration and delayed access to certain benefits. It can be applied to those that require such probationary periods and not applied to others. The time for such a probationary period is also flexible and can be tailored to the individual. Section 12.01 attains the objectives of 12.02 but in a less impairing way. Therefore, section 12.02 is not minimally impairing. Proportionality [ 221 ] This third stage of the test was described in [NAME_166] as: [ 76 ] At the final stage of the Oakes test, it must be asked whether there is proportionality between the overall effects of the Charter -infringing measure and the legislative objective ( Oakes , at p. 139; [NAME_160] , at paras. 72-73). Whereas the preceding steps of the Oakes test are focused on the measure’s purpose, at this stage the assessment is rooted in a consideration of its effects ( [NAME_160] , at para. 76). This allows a court to determine on a normative basis whether the infringement of the right in question can be justified in a free and democratic society. [ 222 ] The Applicants submit that whatever the speculative salutary effects of the [NAME_19] may be, they are far outweighed by its deleterious effects. The [NAME_19] perpetuates a two-tiered system of citizenship on the basis of sex, which cannot be justified in a free and democratic society. Vague notions of protecting against outsiders, unmoored from any evidence demonstrating the potential for positive benefit, cannot serve as the basis for perpetuating the continued discrimination against the Applicants. [ 223 ] Conversely, the [NAME_17] submits that the last element of the proportionality assessment under section 1 is the “final balancing” – where the Court weighs the salutary effects of the law against the deleterious effects. If this Court finds that one of the impugned provisions impairs the gender equality rights of the Applicants, then the Court is required to weigh whether the positive impacts of the law outweigh any impacts on the gender equality. The [NAME_17] submits that the positive benefits of the [NAME_19] far outweigh any restrictions on the Applicants’ equality rights. The Applicants can simply apply for citizenship. The fact that this is not automatic is a minimal impact on their rights. On this basis, the [NAME_17] submits that any elements of the Applicants’ Charter challenge that survives section 25 of the Charter would be saved by section 1 of the Charter . [ 224 ] As discussed above, I have found that the [NAME_19] in whole is not infringing as regards to the requirement that the Applicants must apply for citizenship, nor is the non-mandatory Probationary Period. [ 225 ] However, the effect of the Restricted Rights Period in section 12.02 is to perpetuate disadvantage to the category of individuals, including the Applicants, who have been discriminated against and prohibited from obtaining membership based on discriminatory provisions that violate section 15 of the Charter. An additional five-year restriction on political, funding and housing rights, once the requirements for citizenship have been met and citizenship has been granted, has the effect of perpetuating disadvantage on historically discriminated against prospective citizens. [ 226 ] In summary, the [NAME_17] has not established that section 12.02 has a pressing and substantial purpose, that its effects are rationally connected to its purpose and the provision is not minimally impairing given section 12.01 can meet the purpose of section 12.02 but in a less impairing way. In my view, the breach of the Applicants’ section 15 Charter rights in section 12.02 cannot be saved by section 1. Issue 5: If not, what is the appropriate remedy? Applicants’ Position [ 227 ] The Applicants seek a declaration that the [NAME_19] discriminates on the basis of sex or other analogous grounds, violates section 15, is not justified by section 1 of the Charter , and violates section 35 of the Constitution Act, 1982 . Therefore, that the [NAME_19] is unconstitutional and of no force and effect by virtue of subsection 52(1) of the Constitution Act, 1982 . And/or that my order in [NAME_20] requiring the [NAME_17] to ratify a constitutionally compliant membership code on or before June 29, 2023 was not complied with. [ 228 ] The Applicants also seek an order that: a. Chief and Council shall immediately give notice in writing to the Minister that [NAME_17] no longer has a membership code, and, therefore no longer meets the criteria of s. 10(1) of the Indian Act ; b. [NAME_17] fail to give such notice to the Minister within 10 business days of the date of the Order, the Department of Indigenous Services shall promptly, and no longer than 20 business days from the date of the Order, give notice to [NAME_17] that [NAME_17] no longer meets the criteria of s. 10(1) of the Indian Act , and therefore the [NAME_23] of [NAME_17] has been returned to the Department of Indigenous Services; c. Control of [NAME_17]’s [NAME_23] shall be deemed to have been returned to the Department of Indigenous Services upon the giving of that notice by either [NAME_17] or the Department of Indigenous Services and membership in [NAME_17] shall be determined and maintained by the Department of Indigenous Services pursuant to s. 11 of the Indian Act ; d. [NAME_17] shall immediately call a new election to be held within three months of the date of the Order and [NAME_17]’s membership for the purposes of that election shall be determined pursuant to s. 11 of the Indian Act and the [NAME_23] maintained by the Department of Indigenous Services. [ 229 ] When appearing before me, the Applicants argued that “under inclusion” (absence of automatic citizenship and requirement to apply) is prevalent throughout the [NAME_19] and that it would be difficult to effectively severe offending provisions. Further, that remitting the [NAME_123] to [NAME_28] is consistent with reconciliation as it would be a temporary solution. The [NAME_17]’s position [ 230 ] The [NAME_17] submits that even if the Court were to find a Charter violation not saved by section 1 or shielded by section 25, the remedies sought by the Applicants are not appropriate relief. Rather, nothing beyond a narrowly tailored declaration should be entertained by the Court. Subsection 52(1) provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. Here, declaring the entire law unconstitutional, when the Applicants only take issue with certain provisions, ignores the limiting element of subsection 52(1). The [NAME_17] has legislated an entire membership scheme and the provisions challenged by the Applicants only constitute a limited portion of that scheme. If the Court does find a Charter breach, the only relief that should be considered is to sever the offending provision and issue a narrowly tailored declaration of invalidity. There is no justification to declare the entire law to be invalid. [ 231 ] Further, subsection 24(1) Charter remedies are only available for breaches of Charter rights. Section 35 of the Constitution Act, 1982 is not part of the Charter . Therefore, if the Court were to find a breach of subsection 35(4), subsection 24(1) remedies are not available to the Applicants in relation to those breaches. Remedies for subsection 35(4) breaches are limited to subsection 52(1) remedies. While a subsection 24(1) remedy would be available for a breach of section 15, the requested remedies go beyond what is appropriate in the circumstances. Subsection 24(1) remedies are personal remedies available to persons who have had their rights or freedoms infringed. The Applicants seek to have the Court order [NAME_17] citizenship to be returned to the Minister, thereby automatically adding 2,000 people to the [NAME_17]’s [NAME_29]. [ 232 ] The [NAME_17] submits that because the Applicants have not applied for citizenship and been refused, it is difficult to conceive of a just and appropriate remedy under subsection 24(1) that would be personal to them. The remedy sought by the Applicants, removing the [NAME_17]’s citizenship authority and giving it back to the Minister would be grossly unfair to the [NAME_17]. And, in an era of reconciliation and recognition of Indigenous law-making authority, this cannot be a just and appropriate remedy. Canada’s position [ 233 ] Canada takes no position on the appropriate remedy the Court should apply if the [NAME_19] is contrary to section 15 of the Charter . However, Canada does take issue with the remedy sought by the Applicants. [ 234 ] First, Canada submits that full statutory schemes or acts are rarely struck down in their entirety. Courts have a responsibility to exercise principled discretion when determining an appropriate and effective Charter remedy, which requires the Court to consider and balance competing remedial principles and fashion remedies that address the extent of a breach. Alternatives to an immediate declaration of invalidity of the [NAME_19] could include tailored remedies such as severance, reading in, or reading down. [ADDRESS] can also make a further suspended declaration of invalidity to provide the [NAME_17] with another opportunity to enact a constitutionally compliant law. [ 235 ] Second, with respect to the administration of the [NAME_17]’s membership list, it would be a significant step to compel [NAME_68] to return its membership list back to [NAME_28] and cede its jurisdiction to determine its own membership. Once a [NAME_14] assumes control of its [NAME_23] and the jurisdiction to determine its own membership under section 10 of the Indian Act , it can only return that jurisdiction back to [NAME_28] if a majority of members consent to that decision (s 13.1(2) of the Indian Act ). The question of whether the [NAME_17]’s membership list should be returned to [NAME_28] is therefore a question of governance to be determined by [NAME_68], and is not an outcome that should be imposed through judicial intervention. Further, to return the membership list to [NAME_28] would be detrimental to reconciliation. Analysis [ 236 ] Subsection 52(1) of the Constitution Act, 1982 states that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 237 ] As the [NAME_17] and Canada submit, the Supreme Court has held that full statutory schemes or Acts are rarely struck down in their entirety. Instead, to ensure the public has the benefit of enacted legislation, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved ( Ontario v G at para 112; [NAME_168] v Canada , 1992 CanLII 74 ([NAME_94]) [ [NAME_169] ]; R v [NAME_170] , 2008 [NAME_94] 6 at para 49). The effect of subsection 52(1) is that a court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so ( Ontario v G at para 86). [ 238 ] In this matter, I have found above that only section 12.02 of the [NAME_19] violates section 15 of the Charter and is not shielded by section 25 or saved by section 1. An appropriate remedy in this circumstance is reading down. Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when “the offending portion of a statute can be defined in a limited manner” ( Ontario v G at para 113). [ 239 ] The only appropriate remedy here is to strike section 12.02 from the [NAME_19]. [ 240 ] However, before leaving this point, I would make two further observations. [ 241 ] First, to the extent that the Applicants are suggesting that the [NAME_17] acted in bad faith – and therefore in breach of my order in [NAME_20] – by enacting the [NAME_19] and that this should be a consideration supporting a remedy of striking out the whole of the legislation, I do not agree. The evidence before me is that the [NAME_17] effected a [NAME_38], engaged a consultant and held multiple public meetings to ascertain the view of the [NAME_27]. It considered the specific issue of automatic citizenship, attempted to effect a fair application and integration process to balance the interests of those previously discriminated against on the basis of sex, and other potential applicants, with the impact of new Citizens on [NAME_68]. While the resultant [NAME_19] is imperfect, it was not implemented in bad faith. There was no breach of my order in [NAME_20] . [ 242 ] Second, I agree with the [NAME_17] and Canada that ordering that the control of the [NAME_17]’s [NAME_23] be deemed to have been returned to the Department of Indigenous Services would not be an appropriate remedy. The [NAME_17] did develop the [NAME_19] in response to [NAME_20]. The [NAME_19] filled the void which otherwise would have occurred when the declaration of invalidity of the 1987 Membership Code came into effect. And, pursuant to the Indian Act , the [NAME_17] has the authority to determine its own membership, which it has chosen to do by way of the [NAME_19]. Further, as indicated by Canada, which was not a party in [NAME_20] , once a [NAME_14] assumes control of its [NAME_23] and the jurisdiction to determine its own membership under section 10 of the Indian Act , pursuant to subsection 13.1(2) of the Indian Act , it can only return that jurisdiction back to [NAME_28] if a majority of members consent to that decision. There is no evidence that the majority of members wish to or have done so. Issue 6: Section 35(4) [ 243 ] Before concluding I will briefly address the Applicants’ submissions on section 35 of the Constitution Act, 1982 . [ 244 ] The Applicants submit that the [NAME_19] also violates subsection 35(4) by denying an Aboriginal right to be a member of a [NAME_23] on the basis of sex, which is an absolute right not subject to section 1 of the Charter . [ 245 ] This submission is not the focus of the Applicants arguments and appears to be an alternative argument. [ 246 ] They submit that even if establishing rules of citizenship was an Aboriginal right under section 35 of the Charter , subsection 35(4) prohibits sex-based inequality of Aboriginal rights. Indigenous Nations cannot deny Aboriginal rights based on gender as subsection 35(4) is clear that all Aboriginal and treaty rights are guaranteed equally to male and female persons.

Accordingly, any discrimination that denies a person an Aboriginal right on the basis of sex is also an infringement of section 35 of the Constitution Act, 1982 which is not subject to the reasonable limits contained in section 1of the Charter . They submit that “[t]he right to be an Indigenous person and member of one’s own community is an Aboriginal right ( R v [NAME_171] , 2003 [NAME_94] 43 at para 34), and that right is guaranteed equally to men and women and is an absolute and unconditional right under s. 35(4).” [ 247 ] The [NAME_17] submits that the [NAME_19] does not infringe any Aboriginal rights. The Applicants have the onus to demonstrate the existence of the purported Aboriginal right and have failed to do so. The vague assertion that being “an Indigenous person and member of one’s own community is an Aboriginal right” lacks the specificity necessary to meet the definition of an Aboriginal right (citing R v [NAME_172] , 1996 CanLII 161 ([NAME_94]) at para 27). The [NAME_17] submits that this is similar to the vague assertion of an Aboriginal right “to participate in the governance of his [NAME_14]” that was rejected in [NAME_94] ([NAME_94]) at para 30. Further, that the Applicants have not addressed how the asserted Aboriginal right meets the “integral to the distinctive culture test” established in R v [NAME_159] , 1996 CanLII 216 ([NAME_94]). Additionally, paragraph 34 of [NAME_171] cited by the Applicants to support their asserted Aboriginal right, does not stand for the proposition that every member of a [NAME_14] has an Aboriginal right to be a member of that [NAME_14]. Finally, the [NAME_17] submits that the Aboriginal right asserted by the Applicants is not one that has been recognized in Canadian law and it should not be given its uniquely individual rather than collective nature. [ 248 ] The onus of establishing the existence of an Aboriginal right lies on the party asserting it. The Applicants have not put forward any evidence to support their position that the right to be an Indigenous person and member of one’s own community is an Aboriginal right. I acknowledge that when appearing before me, counsel [NAME_173] referred to materials related to the addition of subsection 35(4) to the Constitution Act in 1983 which was intended to support this argument. However, none of these are included in the written submissions nor were they provided to the Court and counsel for the other parties at the hearing. [ 249 ] In my view, the Applicants submissions on this point are not sufficient to permit the Court to make the finding that the Applicants seek. Therefore, as I did in [NAME_20] (para 103), I decline to make a finding on section 35. Conclusion [ 250 ] For the reasons above, I have found above that the requirement to apply for citizenship does not impose a burden that perpetuates disadvantage on historically discriminated against prospective citizens. For that reason, the [NAME_19], in whole, does not infringe section 15 of the Charter . Nor do its specific provisions that pertain to the automatic right of citizenship (section 7) and the requirement to apply for citizenship (sections 8 and 18). [ 251 ] However, section 12.02 of the [NAME_19] does violate subsection 15(1) of the Charter because it perpetuates discrimination on the basis of sex. Further, section 25 of the Charter does not shield this breach by operation of section 28 of the Charter . The breach is also not justified by section 1 of the Charter . [ 252 ] Accordingly, I would allow this application for judicial review, in part, and declare section 12.02 of the [NAME_19] unconstitutional and of no force or effect.

JUDGMENT IN T-1785-23 THIS COURT’S

JUDGMENT is that: This application is allowed in part. [ADDRESS] declares that section 12.02 of the [NAME_19] is unconstitutional and of no force or effect. "[NAME_174]" Judge APPENDIX “A” Indian Act , RSC 1985, c I-5 Definitions 2 (1) In this Act, [NAME_23]  means a list of persons that is maintained under section 8 by a [NAME_23] or in the Department; … member of a [NAME_23]  means a person whose name appears on a [NAME_23] or who is entitled to have his name appear on a [NAME_23]; … Indian Register  means the register of persons that is maintained under section 5; … registered  means registered as an Indian in the Indian Register; Indian Register 5 (1) There shall be maintained in the Department an Indian Register in which shall be recorded the name of every person who is entitled to be registered as an Indian under this Act. Existing Indian Register (2) The names in the Indian Register immediately prior to April 17, 1985 shall constitute the Indian Register on April 17, 1985. Deletions and additions (3) The Registrar may at any time add to or delete from the Indian Register the name of any person who, in accordance with this Act, is entitled or not entitled, as the case may be, to have his name included in the Indian Register. Date of change (4) The Indian Register shall indicate the date on which each name was added thereto or deleted therefrom. Application for registration (5) The name of a person who is entitled to be registered is not required to be recorded in the Indian Register unless an application for registration is made to the Registrar. ……. [NAME_23] 8 There shall be maintained in accordance with this Act for each [NAME_23] a [NAME_23] in which shall be entered the name of every person who is a member of that [NAME_23]. [NAME_23] control of membership 10 (1) A [NAME_23] may assume control of its own membership if it establishes membership rules for itself in writing in accordance with this section and if, after the [NAME_23] has given appropriate notice of its intention to assume control of its own membership, a majority of the electors of the [NAME_23] gives its consent to the [NAME_23]’s control of its own membership. Membership rules (2) A [NAME_23] may, pursuant to the consent of a majority of the electors of the [NAME_23], (a) after it has given appropriate notice of its intention to do so, establish membership rules for itself; and (b) provide for a mechanism for reviewing decisions on membership. … Acquired rights (4) Membership rules established by a [NAME_23] under this section may not deprive any person who had the right to have his name entered in the [NAME_23] for that [NAME_23], immediately prior to the time the rules were established, of the right to have his name so entered by reason only of a situation that existed or an action that was taken before the rules came into force. Idem (5) For greater certainty, subsection (4) applies in respect of a person who was entitled to have his name entered in the [NAME_23] under paragraph 11(1)(c) immediately before the [NAME_23] assumed control of the [NAME_23] if that person does not subsequently cease to be entitled to have his name entered in the [NAME_23]. … Membership rules for [NAME_23] 11 (1) Commencing on April 17, 1985, a person is entitled to have his name entered in a [NAME_23] maintained in the Department for a [NAME_23] if (a) the name of that person was entered in the [NAME_23] for that [NAME_23], or that person was entitled to have it entered in the [NAME_23] for that [NAME_23], immediately prior to April 17, 1985; (b) that person is entitled to be registered under paragraph 6(1)(b) as a member of that [NAME_23]; (c) that person is entitled to be registered under paragraph 6(1)(a.1) and ceased to be a member of that [NAME_23] by reason of the circumstances set out in that paragraph; or (d) that person was born on [DATE] and is entitled to be registered under paragraph 6(1)(f) and both parents of that person are entitled to have their names entered in the [NAME_23] or, if no longer living, were at the time of death entitled to have their names entered in the [NAME_23]. Additional membership rules for [NAME_23] (2) Commencing on the day that is two years after the day that an Act entitled An Act to amend the Indian Act , introduced in the House of Commons on February 28, 1985, is assented to, or on such earlier day as may be agreed to under section 13.1, where a [NAME_23] does not have control of its [NAME_23] under this Act, a person is entitled to have his name entered in a [NAME_23] maintained in the Department for the [NAME_23] (a) if that person is entitled to be registered under paragraph 6(1)(d) or (e) and ceased to be a member of that [NAME_23] by reason of the circumstances set out in that paragraph; or (b) if that person is entitled to be registered under paragraph 6(1)(f) or subsection 6(2) and a parent referred to in that provision is entitled to have his name entered in the [NAME_23] or, if no longer living, was at the time of death entitled to have his name entered in the [NAME_23]. Deeming provision (3) For the purposes of paragraph (1)(d) and subsection (2), (a) a person whose name was omitted or deleted from the Indian Register or a [NAME_23] in the circumstances set out in paragraph 6(1)(a.1), (d) or (e) and who was no longer living on the first day on which the person would otherwise be entitled to have the person’s name entered in the [NAME_23] of the [NAME_23] of which the person ceased to be a member is deemed to be entitled to have the person’s name so entered; (a.1) a person who would have been entitled to be registered under paragraph 6(1)(a.2) or (a.3), had they been living on the day on which that paragraph came into force, and who would otherwise have been entitled, on that day, to have their name entered in a [NAME_23], is deemed to be entitled to have their name so entered; and (b) a person described in paragraph (2)(b) shall be deemed to be entitled to have the person’s name entered in the [NAME_23] in which the parent referred to in that paragraph is or was, or is deemed by this section to be, entitled to have the parent’s name entered. Additional membership rules — paragraphs 6(1)(c.01) to (c.6) (3.1) A person is entitled to have their name entered in a [NAME_23] that is maintained in the Department for a [NAME_23] if (a) they are entitled to be registered under paragraph 6(1)(a.2) and their father is entitled to have his name entered in the [NAME_23] or, if their father is no longer living, was so entitled at the time of death; or (b) they are entitled to be registered under paragraph 6(1)(a.3) and one of their parents, grandparents or other ancestors (i) ceased to be entitled to be a member of that [NAME_23] by reason of the circumstances set out in paragraph 6(1)(a.1), or (ii) was not entitled to be a member of that [NAME_23] immediately before April 17, 1985. Decision to leave [NAME_23] control with Department 13.1 (1) A [NAME_23] may, at any time prior to the day that is two years after the day that an Act entitled An Act to amend the Indian Act , introduced in the House of Commons on February 28, 1985, is assented to, decide to leave the control of its [NAME_23] with the Department if a majority of the electors of the [NAME_23] gives its consent to that decision. Notice to the Minister (2) Where a [NAME_23] decides to leave the control of its [NAME_23] with the Department under subsection (1), the council of the [NAME_23] shall forthwith give notice to the Minister in writing to that effect. [NAME_23] control of membership (3) Notwithstanding a decision under subsection (1), a [NAME_23] may, at any time after that decision is taken, assume control of its [NAME_23] under section 10. Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Rights and freedoms in Canada 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. … Equality before and under law and equal protection and benefit of law 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Enforcement of guaranteed rights and freedoms 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Aboriginal rights and freedoms not affected by Charter 25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. Rights guaranteed equally to both sexes 28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), c 11 35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Definition of aboriginal peoples of Canada (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada. Land claims agreements (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. Aboriginal and treaty rights are guaranteed equally to both sexes (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. …. Primacy of Constitution of Canada 52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [NAME_10] [NAME_19] 1.0 STATEMENT OF INTENT AND NOTICE WHEREAS : 1.01 [NAME_10] (hereinafter ‘[NAME_68]”) has assumed control of its own Citizenship as recognized by Canada pursuant to s. 10 of the Indian Act of Canada. 1.02 [NAME_68] has the inherent jurisdiction and the right to determine its own Citizenship which is recognized and shielded by s. 25 of the Charter of Rights and Freedoms. 1.03 [NAME_68] has jurisdiction over Citizenship as an essential function of government and self-determination, based upon its unique culture, traditions, values, heritage and history. 1.04 Citizenship is a core jurisdiction that should be maintained through customary and traditional processes and a determination of Citizenship is integral to [NAME_68]. 1.05 Determination of Indian status and Citizenship based on gender as set out in the Indian Act has been found to be discriminatory by courts in various jurisdictions and is contrary to the United Nations International Covenant on Civil and Political Rights. 1.06 This [NAME_19] is enacted to reflect [NAME_68] determining its own Citizenship in accordance with its historical practices, culture, traditions, values, heritage, history, and inherent rights. 1.07 This [NAME_19] and its processes shall be interpreted and applied in accordance with principles of fundamental fairness including rules of natural justice, inherent customary laws, and traditions and values of [NAME_68]. 1.08 This [NAME_19] shall not be interpreted as contrary to s. 15 of the Charter of Rights and Freedoms. …… 3.0 DECLARATION 3.01 [NAME_10] asserts its sovereignty collectively by the inherent right to determine its own [NAME_23] Citizenship based on genealogy, heritage, traditions, culture, values, customs, and beliefs. 3.02 In determining the Citizenship of [NAME_68], the government of [NAME_68] by its Council and Citizens shall ensure that only direct bloodline descendants of original [NAME_10] are included as [NAME_176]. 4 .0 CONSENT OF THE ELECTORS 4.01 The majority of the Electors of [NAME_68], through consultation, community dialogue, and ratification have given their consent to [NAME_68] maintaining control of its own [NAME_29] and by the majority of the Electors authorize Council in approving this [NAME_19]. 5.0 DEFINITIONS 5.01 The following words and phrases have the following meanings: a) [NAME_23] - means [NAME_10] or a [NAME_14] or [NAME_23] as defined in the Indian Act of Canada. b) [NAME_23] Member - means a person whose name appears on [NAME_16] [NAME_29]. …. e) Citizen - means a Citizen or [NAME_23] Member of [NAME_10] recognized pursuant to a [NAME_10] membership code or this [NAME_19] enacted pursuant to s. 10 of the Indian Act of Canada. f) Citizenship - means the position or status of being a Citizen of [NAME_10] being vested with the rights, privileges, responsibilities, and duties of a Citizen, such as voting in an election, ratification, or referendum. …. h) [NAME_29] - means the list of persons maintained by [NAME_10] through its Citizenship Clerk under the terms of this [NAME_19], and includes a [NAME_23] controlled by [NAME_16] pursuant to s. 10 of the Indian Act of Canada, and does not include the [NAME_28] [NAME_23] or Registry of status Indians controlled by Canada pursuant to s. 9 of the Indian Act of Canada. i) [NAME_30] - means the [NAME_38] appointed by the [NAME_23] to act in such capacities as [NAME_16] [NAME_19] may provide or the [NAME_23] may establish from time to time. j) Council - means the elected Chief and Council of [NAME_10] as recognized pursuant to the Indian Act of Canada. …… m) [NAME_28] - means [COMPANY_8]. n) [NAME_28] [NAME_23] - means any list of members of [NAME_10] included in a [NAME_23] or Indian Registry maintained or controlled by [COMPANY_8] pursuant to the Indian Act prior to this Law coming into force. o) Law - means this [NAME_10] [NAME_19]. p) Member - means a Citizen of [NAME_10] who is registered on the [NAME_23] maintained by [NAME_10] pursuant to its Membership Code or [NAME_19] in force from time to time. q) Membership - means those Citizens of [NAME_10] inclusive of Membership established pursuant to Membership rules recognized pursuant to s. 10 of the Indian Act of Canada. ….. t) Status Indian - means a person who, pursuant to the Indian Act R.S.C. 1985 c. 1-5, as amended, is registered as an Indian and whose name appears on the [NAME_28] [NAME_23] or Indian Registry maintained by the Federal Department of [COMPANY_8] or its successor Departments. 6.0 PURPOSE OF THIS [NAME_19] 6.01 The purpose of this [NAME_19] is to: a) set out rules to determine who may or may not enjoy the privilege of being a Citizen; b) set out rules by which to establish, maintain, and administer the [NAME_29]; and c) set out rules by which to protect the continued existence of the [NAME_176]; d) set out the rights possessed by those who enjoy the privilege of being a Citizen of [NAME_68]. 7.0 AUTOMATIC RIGHT OF CITIZENSHIP 7.01 A person has a right to be a Citizen of [NAME_68] by having their name entered automatically on the [NAME_29] if: a) they are registered under the Indian Act as a status Indian; and b) they are listed under [NAME_68] on the [NAME_28] [NAME_23] or Indian Registry; and c) they are registered on the existing [NAME_29] of [NAME_68] and they have satisfied a) and b) as of the date this Law is passed. …… 8.0 ELIGIBILITY FOR CITIZENSHIP 8.01 Subject to the terms and provisions of this Law, a person who is not on the [NAME_29] of [NAME_68] when this Law is passed may be eligible to be enrolled as a Citizen of [NAME_68] if, they: a) submit an application for Citizenship with [NAME_68]; and b) are a direct descendant of an original [NAME_23] Member of [NAME_68] alive on September 19, 1906 at the time of entering Treaty 10; and c) are registered on the [NAME_28] [NAME_23] or Indian Registry maintained by [NAME_28]. …… 8.08 Except for s. 7.0, any person who may be eligible for Citizenship is not automatically entitled to be a Citizen of the [NAME_13] or to have their name entered on the [NAME_29]. Such person must make an application in accordance with the application process of this Law to be considered for Citizenship, and each application will be considered on its own merits. 9.0 CITIZENSHIP CRITERIA 9.01 In addition to the criteria set out above, the following criteria will also be considered in an application for Citizenship: a) Family ties and the genealogy connection of the applicant to [NAME_68]; b) The applicant’s previous conduct and circumstances as they relate to compatibility with [NAME_68] and its Citizens; c) The maturity and character of the applicant and whether or not the applicant will be an asset or a detriment to [NAME_68] and how the applicant will contribute or the potential for contribution to the benefit, well-being and long-term sustainability of [NAME_68]; d) Whether the applicant has a criminal, vulnerable sector, or young offender record; e) Protests by [NAME_176] to the applicant; f) The unique culture, traditions, values, heritage and history of [NAME_68]; g) Any inaccuracy, misrepresentation or misstatement made by the applicant; and h) Any other considerations and factors deemed to be relevant. 9.02 If requested by the [NAME_30] or Council, applicants may be required to submit a DNA test at their own cost to prove that they meet the criteria as set out in this Law, and that they are a direct descendant of Citizens and ancestors of [NAME_68] who entered into Treaty 10 on September 19, 1906 and are eligible to apply to become a Citizen of [NAME_68]. 9.03 Despite any other provision of this Law, no person shall be eligible to be a Citizen of [NAME_68] or have their name entered on the [NAME_29] unless that person is a Registered status Indian, or unless that person in cases determined by the [NAME_30] to be appropriate, provides evidence satisfactory to the [NAME_30] showing they are a direct descendent of [NAME_176]. 9.04 The absence or presence of any one of the factors listed in this section is not necessarily determinative of an application for Citizenship. ….. 12.0 RESTRICTIONS ON NEW CITIZENS AND TRANSFERRED CITIZENS 12.01 In reviewing and determining eligibility for Citizenship, on the recommendation of the [NAME_30], the Council may impose a period of probationary conditional Citizenship not to exceed two (2) years, in order that the applicant may have the opportunity to establish or re-establish social and cultural ties with [NAME_68], to learn [NAME_68]’s customs, traditions, values, heritage and history, and otherwise to adopt the way of life of [NAME_68]. At the end of such probationary period or sooner, if agreed to by the applicant and the Council, Citizenship may be granted. 12.02 For the first five (5) years from conditional acceptance, new Citizens or Citizens who have transferred to [NAME_68] and who have successfully completed their probationary period, are not eligible to: a) run for office of Council in any [NAME_150]; b) receive any per capita distribution payments issued by [NAME_68] from any source; c) receive funding of any kind from any monies distributed or granted from [NAME_68] for any purpose including but not limited to funds from any Trust Agreement, for educational purposes, or for community development purposes; and d) receive services in relation to housing matters including making applications to receive housing owned and managed by [NAME_68]. …. 15.0 INELIGIBILITY, REVOCATION, AND BANISHMENT OF CITIZENSHIP 15.01 Non-Indians A person who is not a Status Indian is not eligible to apply for Citizenship. 15.02 Persons Living with Citizens A Non-Citizen who is living with a Citizen is not eligible to apply for Citizenship in [NAME_68], by reason only that the Non-Citizen is residing with a Citizen. 15.03 Métis Scrip Notwithstanding and whether or not there is any Federal or Provincial legislation or a Court decision to the contrary, a person who is a direct descendent of an ancestor who was a [NAME_23] Member and who on or after [NAME_68] entering Treaty 10 on September 19, 1906 was issued or is recorded as having accepted Métis Scrip is not eligible to apply for Citizenship. 15.04 Revocation of Citizenship and Banishment a) The Council is responsible for the health, well-being, and protection of the [NAME_176] and its assets. Any Citizen who mistreats another Citizen or creates or continues to create trouble, community dysfunction, or unrest at [NAME_10] may, in the sole discretion of the Council, have their Citizenship in [NAME_68] revoked and they will be banished upon forty-eight (48) hours’ notice. b) A person whose Citizenship has been revoked may apply for an appeal and review of the decision of the Council pursuant to the Appeal process outlined in this Law, and will be treated as an applicant for Citizenship for the purpose of the appeal process. 15.05 An applicant who has not successfully completed their probationary period, have had their application rejected, or have been unsuccessful in having the rejection of their application overturned on appeal is not eligible to apply for Citizenship. 18.0 APPLICATION FOR CITIZENSHIP …. 18.02 Applications for Citizenship must be made in writing and signed by the applicant (or in the case of a Child, signed by the person(s) who has lawful custody of the Child). Applicants are responsible to provide all information and documentation required to establish eligibility to Citizenship pursuant to this Law, and all costs of preparing and submitting such application shall be the responsibility of the applicant. 18.03 An application by an adult for Citizenship shall include all documentation necessary to support the application including the following: a) Birth Certificate; b) Status under the [NAME_28] [NAME_23] or Indian Registry maintained by [NAME_28]; c) Marriage or divorce certificate; d) A genealogy chart in Schedule “3” that includes the names of the applicant’s parents including the maternal and paternal grandparents; e) A criminal record and vulnerable sector check dated within thirty (30) days of the application; f) The applicant’s agreement that subject to their being approved, that they will not be entitled to be entered on the [NAME_29] and be a Citizen of [NAME_68] until they complete the application process; g) A current address for service of all documents relating to the application; and h) Such further and other information as may be required by the [NAME_30] or Council. ….. 18.07 Once an application is completed, the Citizenship Clerk will notify the [NAME_30] in writing as to whether the applicant is eligible or ineligible for Citizenship with [NAME_68]. A copy of the completed application together with all accompanying materials will be provided to the [NAME_30], and upon receipt: a) the [NAME_30] shall determine the disposition of the application and shall advise the Council and the Citizenship Clerk in writing of their recommendation, whether or not to approve the applicant for Citizenship and the reasons therefore, upon being satisfied or not that: i) the person is duly eligible for Citizenship; ii) the applicant is of good character; and iii) granting of Citizenship will not be harmful, detrimental, or contrary of the interests of [NAME_68]. 18.08 Upon receiving recommendations from the [NAME_30], the Council will make a decision either to approve or deny the application for Citizenship to [NAME_68]. The Council may take into consideration the recommendations of the [NAME_30], may dismiss or adopt those recommendations, upon considerations which include whether: a) [NAME_68] has sufficient resources to address and protect the health, welfare and social well-being of all of its existing Citizens; b) [NAME_68] has sufficient resources to address all current social, housing, health and welfare of its existing Citizens; c) [NAME_68] has sufficient housing, land, and other resources to accommodate new Citizens; d) [NAME_68]-owned entities that support various community investments and Citizenship initiatives are not compromised as a result of accommodating new Citizens; and e) any other considerations or information the Council deems material or relevant to its decision whether to approve the application of new Citizens. 19.0 APPROVAL/DENIAL OF APPLICATION 19.01 Following a recommendation of the [NAME_30], by way of motion, a quorum of the Council shall either approve or deny an applicant’s application. 19.02 If an application is approved, the Citizenship Clerk shall immediately notify the applicant in writing, and subject to completion of any probationary period, enter the applicant’s name on the [NAME_29], and post the decision of the Council in a public place at [NAME_68]. 19.03 If an application is denied, the Citizenship Clerk shall provide a letter of explanation to the applicant including reasons for the denial. The applicant may be granted an opportunity to appeal the decision in accordance with the appeal process specified this Law. 20.0 APPEAL PROCESS 20.01 Any applicant whose application for Citizenship is denied or revoked, if they so decide, shall apply within thirty (30) days of the decision of the Council for a review of the decision by [NAME_68] Appeal Tribunal (the “Tribunal”). 20.02 The Tribunal shall be formed by the Council from applicants who meet a criteria and requirements which include qualification by age, education, experience, and lack of conflict, and be composed of four (4) Citizens including one (1) Elder selected from amongst the [NAME_176] and a practicing lawyer who is familiar and has experience with [NAME_68]. The Tribunal members shall serve for a term of four (4) years. 20.03 The Tribunal will hold hearings during the third quarter of any given year. The Council shall set the remuneration and expenses for Tribunal members. The Tribunal shall select a Chair from among themselves. The Tribunal shall determine its own procedure which shall be transparent to all participants and the public through notices and announcements. 20.04 The Tribunal shall convene once per year during the third quarter of the fiscal year (October to December) to consider appeals which have been filed or before September 30th of any given year. 20.05 The Tribunal shall follow governance procedures developed by Council in consultation with Citizens and which Tribunal governance procedures shall include the laws of natural justice including fairness, transparency, disclosure, adequate notice, and freedom from bias. 20.06 The Tribunal shall be assigned a staff member from the Citizenship Department who will be responsible for all administrative and logistical support for the Tribunal, including disclosure of documentation, information flow to the appellants, recording proceedings, and selection of venue. 20.07 The Tribunal hearings shall be public unless information is deemed to be of a sensitive nature, and public discourse may cause distress. 20.08 The appellant and the respondent [NAME_30] shall be provided the opportunity to present argument only in favour of their positions. 20.09 Both parties may retain a lawyer and receive legal advice, but the lawyers shall not be allowed to present arguments or cross-examine witnesses at the hearing. 20.10 All Tribunal communications and processes must be recorded to provide evidence record in possible appeals on questions of procedural fairness. 20.11 The Tribunal record of proceedings and written decision shall be kept in a secure place by the Citizenship Department. 20.12 Tribunal decisions must be written and delivered within two (2) weeks of the hearings, unless there is a need for additional information that cannot be delivered within two (2) weeks, in which case the decision will be delivered as soon as possible. 20.13 If the appeal is successful, the Tribunal shall direct the application be immediately returned to the Council for reconsideration and decision within fourteen (14) days of its receipt. 20.14 If the appeal is not successful, the Tribunal shall direct the rejected application be immediately returned to the Council to record that the applicant shall not be eligible to apply for Citizenship again. 20.15 The Tribunal decision is final and binding, and shall not be the subject of appeal to the Courts. 21.0 PROTESTS BY CITIZENS 21.01 Notwithstanding the above, upon posting notice of an applicant’s approval to the Citizenship, any Citizen of [NAME_68] may protest the acceptance by Council of any applicant by completing a protest form provided by the Citizenship Clerk within thirty (30) days of the public posting. 21 .02 Special Meetings of the Citizenship will occur quarterly, and the Citizenship Clerk will set the time, date, and place for the next Special Meeting of the Citizenship to hear the protest. 21.03 The entire process to hear the protest must be completed within one (1) year of the Council receiving a protest in writing. 21.04 At the Special Meeting of the Citizenship, the [NAME_30] shall present the written protest including all pertinent documentation and materials. The protestor may be present at the Citizenship meeting but will not make any presentations to the Citizenship, unless previously approved by the [NAME_30]. 21.05 At least twenty-five percent (25%) of the Electors of [NAME_68] must be in attendance at the Special Meeting of which fifty percent plus one (50% + 1 ) of those Electors are required to vote to either approve or deny the protest. 21.06 If the [NAME_18] rejects the protest, the decision is final and binding, and the applicant will be notified in writing by the Council that their name will remain on the [NAME_29]. 21.07 If the [NAME_18] approves the protest, the applicant will immediately be notified by the Council of this decision, and the Citizenship Clerk will remove the applicant’s name from the [NAME_29]. FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1785-23 STYLE OF CAUSE: [NAME_2], [NAME_5] v CANADA ([COMPANY_8]) AND, [NAME_10] OF HEARING: Saskatoon, Saskatchewan DATE OF HEARING: March 3, 2026

JUDGMENT AND

REASONS: [NAME_1] J. DATED: APRIL 1, 2026 APPEARANCES : [NAME_177] [NAME_180] [NAME_173] [NAME_183] FOR THE RESPONDENT (CANADA ([COMPANY_8])) [NAME_186] FOR THE RESPONDENTS ([NAME_10]) SOLICITORS OF RECORD : [COMPANY_192], [NAME_173] of Canada Saskatoon, Saskatchewan FOR THE RESPONDENT (CANADA ([COMPANY_8])) [COMPANY_190], [NAME_62] FOR THE RESPONDENTS ([NAME_10])