Its intent may be to promote gender equity in Indian registration, but Bill C-3 [now before Parliament] does not ensure that women and their descendants will be treated the same as men and their descendants for the purposes of determining Indian status.
Witnesses told the standing committee on Aboriginal affairs this spring that the Conservative government's bill to address sex discrimination is not a remedy they support.
The bill is Ottawa's response to McIvor v. Canada, a 2009 B.C. Court of Appeal ruling that found that Section 6 of the Indian Act violates Section 15 of the Canadian Charter of Rights and Freedoms. The court gave Ottawa a year to fix the legislation.
Indian status, defined in the Indian Act, is a designation akin to citizenship. It determines which persons of Aboriginal descent are eligible to be treated as Indians by the federal government. It is used to determine eligibility for certain federal programs. In some instances, it is also linked to entitlement to live on reserves and participate in the political and community life of reserves. Although some bands choose to have members who do not have Indian status, most bands make status a precondition of band membership.
The act has a long history of discrimination against women. Until recently, the Indian Act defined an Indian as "a male Indian, the wife of a male Indian or the child of a male Indian." Indian women who married non-Indians were stripped of their status and could not pass Indian status on to their children. Indian men who married non-Indians, passed on their status and band membership to their wives and children, and thus to their grandchildren.
In the early 70s, Jeanette Corbiere Lavell and Yvonne Bedard challenged section 12(1)(b) of the Indian Act for violating the 1960 Canadian Bill of Rights' guarantee of sex equality. They lost at the Supreme Court of Canada in 1973, but Sandra Lovelace went on to challenge Canada for violating the International Covenant on Civil and Political Rights, and won. The U.N. Human Rights Committee found Canada's status provisions deprived women and their children of the fundamental right to enjoy their culture in their communities.
When Canada's new equality guarantees in the Charter came into force 25 years ago, the Mulroney Conservative government moved to amend the status provisions of the Indian Act with Bill C-31. But that fix was incomplete. Bill C-31 retained full Indian status for Indian men, their wives and children but put women and children who had lost status because of sex discrimination in a second-class category rather than giving them full status.
As a result, Indians who never lost their status may confer status to their children and grandchildren, while reinstated Indians have a diminished status -- one that stipulates that they can confer status to their children, but not to their grandchildren.
Under Section 15 of the Charter, Sharon McIvor challenged the sex-based hierarchy in the status registration sections of the Indian Act, not just for treating men and women who married out differently, but for giving preferred treatment to men as transmitters of Indian status, and to descendants of male Indians. McIvor won in the B.C. Supreme Court and the B.C. Court of Appeal in 2007 and 2009 and, as a result, the federal government is required to amend the Indian Act.
The Conservative government maintains Bill C-3 would provide Indian status to 45,000 descendants of Aboriginal women who were previously ineligible. However, McIvor, the Native Women's Association of Canada, and other witnesses at the committee hearings say it will still give women and their descendants an inferior form of Indian status compared to men and their descendants. Known as the second generation cut-off, the cut-off would apply to descendants of women one generation earlier than it applies to male lineage descendants.
In addition, Bill C-3 will still leave out some Aboriginal women and their descendants. For example, grandchildren who trace their Aboriginal descent through the maternal line will continue to be denied status if they were born prior to September 4, 1951. And yet grandchildren who trace their Aboriginal descent through the male line will not.
Further, by proposing only to correct sex discrimination against the grandchildren of women who lost status by marrying out, Bill C-3 would continue to exclude grandchildren who are descended from status Indian women who had children with non-status men in common-law unions. It would also continue the exclusion of female children and grandchildren of status Indian men who partnered with non-status women in common-law unions. Male children and grandchildren of status Indian fathers who co-parented with non-status women in common-law unions will have status.
Having heard all the witnesses, the, opposition parties' members on the standing committee made amendments to the bill to remove sex discrimination from the status registration provisions. The amendments were adopted by the committee. However, on May 11 the Speaker of the House ruled that the amendments were out of order. By some estimates the amendments would include about 200,000 people who have been wrongfully excluded from having Indian status because of sex discrimination.
Aboriginal women in Quebec, lead by Michele Audette and Viviane Michel, are currently on a 500-kilometre walk from Wendake to Parliament Hill. They started on May 4th and their walk will end on June 1. The "AMUN" March, which translates to Great Gathering, is in support of Sharon McIvor who is calling for the removal of all gender discrimination from the Indian Act -- now.
The ball is in the Conservatives' court. Are they willing to end discrimination against all Aboriginal women and their descendants by replacing Bill C-3 with legislation that does the job right? If not, the Liberals, the NDP and the Bloc should vote this flawed bill down, forcing the Conservatives back to the drawing board unless they want to trigger the McIvor decision making the tainted Indian Act provisions "of no force and effect." If the opposition parties support the flawed remedial legislation, then someone will be tasked with spending the next 20 years litigating, almost certainly successful, if time consuming and expensive, claims that the Indian Act still violates the Charter.
Shelagh Day is Chair of the Human Rights Committee, Canadian Feminist Alliance for International Action (FAFIA). Joyce Green, Professor of Political Science, University of Regina.
This story first appeared in Herizon magazine.