Ahwenehaode - Indigenous Justice

Here is the section on Indigenous Identity on the encampment ruling, The Regional Municipality of Waterloo v. Named
Respondents and Persons Unknown, 2026 ONSC 2971

Indigenous Identity
[233] The Amended By-Law will have a disproportionate impact on the Encampment’s
Indigenous residents and exacerbate ongoing harms and existing disadvantages.
[234] Homelessness among Indigenous people is not simply a matter of individual misfortune.
For Indigenous people, it is well established that homelessness is a consequence of colonization
which dispossessed Indigenous people of their land and resources, propelling and inflicting
generations of systemic racism and ongoing trauma. Homelessness is a consequence of systemic
and societal barriers, a lack of affordable and appropriate housing, and the individual person’s
specific history and challenges.
[235] Indigenous people in Canada are disproportionately under-housed, unhoused, and
experience barriers to access affordable, permanent, stable, and supportive housing. In Waterloo
Region, only 1.7% of the total population identify as Indigenous. However, 17% of the surveyed
unhoused people in the 2024 PiT Count were Indigenous.
[236] Following the Supreme Court of Canada’s analysis in Kanyinda, even if homelessness is
not recognized as an analogous ground under s. 15(1), the Encampment’s Indigenous residents
will satisfy the first part of the s.15(1) test as a subgroup of the affected homeless population. The
adverse effects of the By-Law arise in the nexus between homeless and race. The second part of
the test is satisfied because the impacts of the By-Law are particularly severe for Indigenous people
who are already unhoused and overrepresented in the homeless population. Upon eviction,
Indigenous residents will be denied the benefit of culturally safe housing options and will face
additional barriers due to shelter eligibility rules that disproportionately exclude them because of
their Indigenous identities.
[237] Indigenous racial identity is a protected ground under s.15(1), and the By-Law creates a
distinction based on its disproportionate impact on the Indigenous people living in the
Encampment. The purpose of the By-Law is to evict the residents of the Encampment to facilitate
the construction of the KCTH. Although the stated purpose of the By-Law is facially neutral, its
effects disproportionately burden Indigenous residents of the Encampment and therefore amount
to adverse effects discrimination.

I am so proud to be a part of a team that successfully argued a precedent-setting case recognizing the disproportionate impact encampment evictions have on Indigenous people experiencing homelessness.

The Court affirmed that Indigenous homelessness is not simply the result of individual circumstances, but is deeply connected to colonization, displacement from land, systemic racism, intergenerational trauma, and barriers to safe and stable housing.

One passage that stands out:
“Homelessness among Indigenous people is not simply a matter of individual misfortune. For Indigenous people, it is well established that homelessness is a consequence of colonization.”

The decision highlights that while the by-law appeared neutral on the surface and applied to everyone equally, its real-world effects would disproportionately harm Indigenous residents already overrepresented in homelessness and facing additional barriers to culturally safe housing and shelter access.

According to the 2024 Waterloo PiT count, Indigenous people make up only 1.7% of the population, yet represented 17% of unhoused people.

The Court found that policies that appear neutral can still deepen inequality and amount to adverse-effects discrimination under section 15(1) of the Charter when their impacts fall more harshly on marginalized communities.