McIvor is Just the Start - The Indian Act is Full of Discrimination
For anyone who hasn't heard of Sharon McIvor v. Canada - a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn't always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question.
In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all.
It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services.
At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed.
The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected.
Canada then embarked upon an "engagement" process - accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed - from August to November 2009. Canada's reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada's excuse that it needed to rush is somewhat questionable.
Canada offered two amendment options to Aboriginal peoples for consideration:
Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman:
(a) who lost status due to marrying a non-Indian; and
(b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the "double mother" rule was first included in the Indian Act).
To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the "child" mentioned in (b) above.
A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman's child (the subsequent parent of the grandchild with a non- Indian) was born before 1985.
In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1).
What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don't think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor's case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way.
How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada's discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens' will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities?
McIvor's case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples:
(1) Gender discrimination - An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather);
* Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination.
(2) Arbitrary cut-off date - The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not;
(3) Illegitimate siblings - Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock;
(4) Unstated paternity - If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status - this results in the child having lesser or no status;
(5) Métis scrip takers - Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis;
(6) Second generation cut-off - Indians may be refused status because one of their parents do not have status - this equates to a blood quantum requirement that discriminates against those children of mixed marriages;
(7) Non-Aboriginal preference - (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions - Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s).
As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act.
It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based - it seemed to forget that the Indian Act's status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so.
Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada's authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with "Indians and lands reserved for the Indians" but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations - it's time we were able to heal and re-assert our own identities.
No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our "heirs and heirs forever". It is time for Canada to undo the harm it has caused.
I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?