To whom this may concern:
TL;DR the Indian Act continues to discriminate against women when giving individuals status under ss. 6(1) and 6(2). In 2015 the Quebec Superior Court struck down offending provisions that violate the s. 15 Charter right to equality on the basis of, inter alia, sex. The government is at present reassessing.
As we wrap up this week’s blog posts on notable sections of the Charter, we introduce next week’s topic: Indigenous rights and history vis a vis the BNA Act. As mentioned during our inaugural week of introductory posts, the BNA Act was a “product of its time [and] failed to address indigenous peoples in a meaningful way, entrenching a disregard for aboriginal law that persists today.”
Indigenous issues in Canadian politics and jurisprudence are complex and often poorly balanced due to historic systemic and legislative discrimination toward Indigenous people in Canada.[1] On the one hand; we must recognize the unique position of Indigenous peoples whose ancestors predated Confederation and colonization. On the other hand; by singling out certain groups of people, we risk deepening the chasm among people and making it difficult to reconcile systemic discrimination. Indeed, certain legislation in Canada’s history may have created a deep divide between Indigenous and non-Indigenous people.[2]
Unfortunately, our small team of five students includes only European-heritage people (both Canadian-born and immigrants) with no North American Indigenous roots. Therefore, our analysis of these issues comes from a specific perspective: a modern, settler-heritage and/or recent immigrant-heritage, with liberal-ish (or straight up libertarian, for one of us!) legal perspectives. What does this mean for you, the reader? It means that we might make mistakes in our understanding of Indigenous issues and concerns. We try our best to be aware of issues, but ultimately it is impossible for us five students to perfectly reflect the variety of Indigenous peoples lived experiences and history.[3]
Disclaimer aside, we feel that we have a strong basis for awareness and respect for Indigenous communities and a decent understanding (for wet-behind-the-ear law students) of Indigenous legal issues to spend a week talking about Indigenous-Canadian jurisprudence (known as Aboriginal Law). Today, we address a section 15 equality violation in the Indian Act.[4]
Sex discrimination in the Indian Act is not a new phenomenon. Next week we will discuss more legislation that discriminated against Indigenous people of this land. In the interest of brevity, please see the following links for the history of Charter challenges that Indigenous women have been fighting, notably McIvor, Bedard, Lovelace, and Lavell: ablawg.ca and rabble.ca.
The relevant subsections in the Indian Act are 6(1) and 6(2). If you are Indigenous, you would likely agree that s. 6 is highly problematic. Section 6 gives people legal status as “Indians”. Status is important to many people because it comes with various rights and responsibilities. More importantly, it allows people to be included with other members of their specific cultural community. While it might not seem like an obvious connection, Indigenous people sometimes report that the official “status” can have a significant effect on their sense of identity. One example is that people might not have the right to live on a reserve where their family lives.[5]
To make a complicated story short, ss. 6(1) and 6(2) give individuals equal Indian status. However, if a person with 6(1) status has children with a non-status person, the children can apply for 6(2) status. If a 6(2) person has children with a non-status person, the children cannot apply for s. 6 status. If two 6(2) people have children together, their children can apply for 6(1) status. It’s like math; the more you divide genetics in half, the more watered down a person is, no?[6] However, culturally, some Indigenous people find that their status does not match their identity. Therefore, Indigenous people have brought s. 15 Charter challenges to court to obtain s. 6 status.
Dr. Lynn Gehl is an Indigenous woman without status.[7] Her mother is not Indigenous and her father was granted 6(2) status posthumously in 1985; he spent his life feeling disconnected from his community.[8] Gehl’s father’s mother (who qualified for 6(1) status) did not know the identity of Gehl’s grandfather. In the absence of a father, Gehl’s father could not obtain 6(1) status because in the absence of his identity, Indigenous and Northern Affairs Canada presumes him to be a non-status person.[9] The onus to prove status rests upon the applicant.[10]
Although the government of Canada has repeatedly attempted to rectify patrilineal discriminatory laws, Dr. Gehl asserts that the current system still discriminates against mothers and children. Dr. Gehl has been tirelessly fighting a Charter challenge for 31 years. When the government disregards the cultural or legal identity of an absent father, the outcome is that the government assumes that the father is non-status. Because the applicant cannot prove a father’s status, the government assumes that, therefore, there must be no status. If Gehl’s grandfather could be identified and if he qualified for either 6(1) or 6(2) status, Gehl’s father would have been granted 6(1) status and Gehl would qualify for 6(2) status. In the absence of positive proof of status, Gehl’s grandfather is presumed to be a non-status individual. The trickle-down effect is that Dr. Gehl, an integrated member of her ancestral community, remains without status. Below is a graphic designed by Dr. Gehl for easier understanding. She also provides a resource to clarify the four “un”-paternity situations.
To get back to s. 15, let’s face it: due to the biological difference between men and women, a man can be absent at his child’s birth. It is impossible for a woman to be absent at her child’s birth. At birth or shortly thereafter, parents have to sign the birth certificate. So, it is much easier for a person applying for status to trace paperwork and find the identify of a later absent mother (or grandmother) than an absent father (or grandfather). Take this situation and supplant it half a century ago, on an Indian reserve. Who is Gehl’s grandfather? Gehl argues that it shouldn’t matter. Section 6 discriminates against women who cannot avoid birth-parent identity when men can avoid birth-parent identity. Refusing status to a child on the basis that the absent father is presumed to be a non-status individual assumes that women carry a heavier burden to prove their children’s identities than do men. In the absence of a father, Gehl’s father’s status should have been assessed only on the basis of his mother’s identity.
A similar s. 15 challenge was raised in Descheneaux c. Canada (Procureur General) in August 2015.[11] The lawyers for the three Indigenous plaintiffs distributed a document illustrating actual family tree charts and hypothetical family tree charts (on the advice of Dr. Lynn Gehl, published by the Assembly of First Nations) to assist the court in understanding the blatant discrimination in s. 6. The Quebec Superior Court declared that paragraphs 6(1)(a), (c), and (f), and subsection 6(2) of the Indian Act “unjustifiably infringe section 15 ... and are inoperative” or of no force or effect.[12] The Attorney General did launch an appeal, but withdrew it after the Conservative government gave way to the Liberal government in the November 2015 election. The government has a two-step plan to address “known” sex discrimination in the Indian Act.[13]
The Dominion applauds this major step towards dismantling the ongoing systemic legal discrimination against some Indigenous people. However, one might well be cautiously optimistic because government reform to sex discrimination in the Indian Act is not new and does not always resolve the issues. After major legislative changes in 1951, Indigenous Canadian women campaigned for almost 25 years before the Indian Act was amended in 1985, due to s. 15 Charter challenges.[14] Another 26 years passed before the government rectified persistent discrimination against Indigenous women resulting from the 1951 amendment of the Indian Act.[15]
Thanks for reading! We’ll be back on the statutory holiday Monday, October 10, with our “anti-Thanksgiving” week: Indigenous Week.
With most humble regards,
The Dominion
[1] Wendy Moss & Elaine Gardner-O'Toole, “Aboriginal People: History of Discriminatory Laws”, Government of Canada Publications (Nov 1987), online: <publications.gc.ca/Collection-R/LoPBdP/BP/bp175-e.htm>.
[2] Ibid.
[3] Moreover, we are unable to interview any Indigenous people according to the University’s research ethics principles. It sounds unfair, but there is a good policy behind it. Next week we’ll write a blog post about this issue.
[4] RSC 1985, c I-5.
[5] Janet Silman, Enough is Enough: Aboriginal Women Speak Out (Toronto: Women’s Press, 1992).
[6] This is sarcasm. People are not math equations and one’s culture and identity is not determinative solely on the basis of genetics or legal status.
[7] We confirm that we did not interview her as a research participant; we researched her peer-reviewed academic article, her blog, and the court decisions of her Charter challenge.
[8] Lynn Gehl, “The Queen and I: Discrimination Against Women in the Indian Act Continues”, Canadian Woman Studies: An Introductory Reader (Toronto: Inanna Publications and Education Inc) at 162-171.
[9] Some Indigenous communities had matrilineal rules of descent before colonization, such as the Maliseet of the Tobique First Nation located in New Brunswick. Silman, supra note 5.
[10] Indian Act, supra note $$, s 14.2(4).
[11] 2015 QCCS 3555, 2015 CarswellQue 13424 [Descheneaux].
[12] Ibid at para 245.
[13] The Government of Canada’s Response to the Deschenaux Decision, Indigenous and Northern Affairs Canada (Ottawa), online: <https://www.aadnc-aandc.gc.ca/eng/1467227680166/1467227697623>.
[14] Mary C Hurley & Tonina Simeone, Legislative Summary of Bill C-3: Gender Equity in Indian Registration Act, Library of Parliament Research Publications (Ottawa, 18 March 2010), online: <www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=c3&Parl=40&Ses=3&source=library_prb>; Silman, supra note 5.
[15] Pam Palmater, “Frequently Asked Questions about Bill C-3 (Simplified)”, Legislating our Extinction, Non-Status Indians (3 Feb 2011), online: <nonstatusindian.blogspot.ca/2011/02/frequently-asked-questions-about-bill-c.html>.
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