(Originally published in Lawyer's Daily on June 21, 2017 - edited)
Although there have been many amendments to the act over the years, the federal government, through the Indian Registrar, retains exclusive authority over the legal criteria for determining who is an Indian. Unfortunately, self-declared feminist Prime Minister Justin Trudeau’s elite feminist team of ministers is actively working against gender equality amendments for the Indian Act’s discriminatory registration provisions.
Under previous versions of the act, Indian women who married out (married a man not registered as an Indian) lost their Indian status, as did her children. Indian men who married out kept their Indian status and their non-Indian wives and children gained Indian status as well. This created a deep inequality that has been carried forward through successive generations despite the many human rights protections enacted in Canada over the same time period.
Many Indigenous women fought against these discriminatory provisions, including Jeannette Corbiere-Lavell and Yvonne Bedard, who lost their case at the Supreme Court of Canada in Lavell v. Canada (Attorney General)  S.C.R. 1349. Sandra Lovelace (now Sen. Sandra Lovelace Nicholas) won her human rights claim against Canada at the United Nations Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) requiring Canada to amend the Indian Act in 1985.
However, the 1985 Bill C-31 amendments did not go far enough to remedy the ongoing gender inequality between Indian men and women and their descendants in the transmission of Indian status, so Sharon McIvor was forced to bring a s. 15 Charter challenge against Canada (The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11). Her win on appeal McIvor v. Canada (Registrar, Indian and Northern Affairs) 2009 BCCA 153 forced Canada to amend the act once again in 2010 with the Bill C-3 amendments, but Canada’s reluctance to remedy all gender discrimination led to the current case underlying the 2017 Bill S-3 proposed amendments in Descheneaux v. Canada 2015 QCCS 3555.
At issue in all of these cases was the federal government’s staunch refusal to once-and-for-all remedy all remaining vestiges of gender inequality between Indian men and women in the transmission of Indian status.
What is unique about the proposed Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) is not so much the need to address the Descheneaux decision (which declared various discriminatory sections of the Indian Act inoperative); but the stark political differences between the Senate and the House on the fundamental question of whether Indigenous women and their descendants deserve gender equality under the Indian Act.
After hearing the passionate testimonies of Indigenous women lawyers and experts, First Nation organizations and other legal witnesses; the Senate unanimously supported an amendment to Bill S-3 intended to grant the same status to Indian women and their descendants as that held by Indian men and their descendants, referred as the “6(1)(a) all the way” amendment.
The importance of gender equality for Indigenous women united Liberal, Conservative and independent senators alike. Minister Carolyn Bennett’s refusal to accept the amendment pitted the Senate against the House, whose Aboriginal Affairs Committee rejected the gender equality amendment and Parliament will likely vote to send the bill back to the Senate with a new title to respond to Descheneaux and not fully eliminate sex-based inequities.
The fact that Indigenous women must continue to battle Canada for equality is shocking in 2017 given that the Charter’s section 15 guarantee of equality between men and women has constitutional status. The Charter’s well-established case law on substantive equality and Aboriginal rights leaves little doubt about Canada’s legal and constitutional obligation to remedy gender inequality for Indigenous women — but it is by no means the only legal protection against sex discrimination in Canada.
Section 3(1) of the Canadian Human Rights Act R.S.C., 1985, c. H-6 prohibits discrimination on the grounds of race and gender. Section 35(4) of the Constitution Act, 1982 ensures that Aboriginal and treaty rights are guaranteed equally as between males and female persons.
The United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, Oct. 2, 2007, A/RES/61/295 (UNDRIP), which Trudeau has specifically promised to implement into law in Canada, includes article 44 which ensures that all the rights and freedoms contained in UNDRIP are guaranteed equally to male and female Indigenous peoples.
It must be remembered that cabinet ministers were directed by Trudeau to fulfil their mandates based on the principle that there is no relationship more important to Canada, than the one with Indigenous peoples.
It was therefore refreshing to hear former Minister for the Status of Women Patti Hadju acknowledge the “long-standing, systemic discrimination that Indigenous women and girls experience in this country”; that “intersection of racism and sexism greatly increases the vulnerability of Indigenous women” and that the “racism brought on by colonization has had devastating impacts on Indigenous women’s power, their status, their role in their communities and their economic situations.” Yet, the current Minister for the Status of Women, Maryam Monsef, is silent on the issue of Bill S-3 and Justice Minister Jody Wilson-Raybould and Indigenous Affairs Minister Bennett continue to actively obstruct the Senate amendments to fully remedy gender discrimination in the Indian Act. Minister Bennett and Minister Raybould-Wilson are responsible for creating this standoff over equality in the Senate and House.
No one wanted it to come to this, but here we are with the fundamental equality rights of Indigenous women in the balance. It is now up to the Senate of Canada to stand firm in its original stance defending both the Charter’s integrity and the equality rights of Indigenous women.
The next steps may be hard and they may be political uncomfortable — but for Indigenous women, it is a matter of life and death. Discriminatory exclusion under the Indian Act is one of the root causes of murdered and missing Indigenous women — it’s up to the Senate now to stand with the Charter and defends gender equality.
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