Made by the Indian Act:

Lavell and the Hidden Story of Equality Law and Judicial Review

Abstract

This article explores the enmeshment of the Indian Act in Canada’s legal order. Situated in the period between 1968 and 1974, it examines how this era shaped Canada’s legal edifice and how the Indian Act serves as its bedrock. While the article may also contribute to the history of Canadian constitutional, Aboriginal, and administrative law, its main purpose is to demonstrate how the colonial encounter between Indigenous and settler shapes the colonial state and colonial legality. The findings are based on original archival research. The article begins with a review of the political and legal environment in the late 1960s on the Indian Act, discrimination, and federal Indian policy. Then I examine how the Indian Act, in particular its status regime, constituted a terrain for Canadian courts, policy-makers, and legal scholars to debate a justiciable meaning of equality. I analyze how the outcomes in Drybones and Lavell shook up debates about judicial review. I show how the Lavell case catalyzed a new configuration of political alliances and schisms, across racial and gender lines, with material inequities permitting the federal government to divide Indigenous resistance.

The controversy over the Indian Act was productive for the Canadian state. It helped jurists define and understand equality and non-discrimination and nourished debate about parliamentary supremacy and judicial review, in an era when the Canadian Bill of Rights was a disappointment and calls for entrenched constitutional rights were intensifying. Lavell was the first time the Supreme Court heard from a gamut of interveners affected by a law being challenged. The case demonstrated that public opinion pressure could be a force in the court room, not just in parliament and at the ballot box, and that judicial processes could be used to change the balance of power between settler and Indigenous political leaders. In part because the dispute about the Indian Act mobilized the Canadian women’s movement, the government was able to transform a challenge against a discriminatory federal law into a dispute between different Indigenous constituencies. This deflected blame from the government onto Indigenous leaders, divided Indigenous political resistance, and undermined Indigenous self-determination.

Indigenous peoples gained little from the debate, litigation, and activism about sex discrimination in the Indian Act in the early 1970s. Instead, their demands for redress created a space for settler society to thrash out legal and political questions about equality and the proper relation between courts, the legislature, and the public. The indisputable merits of Lavell’s claim have been celebrated by government and canonized in legal treatises, but Canadian law has never fully acknowledged that Canada’s legal roads have been paved by Indigenous people demanding, and being denied, justice.