The Indian Act, legislative silence and ongoing sex discrimination in Canada

| April 15, 2013
Sharon McIvor at protest on Parliament Hill, May 2010.

Legislative change must be more than about a government using it as an opportunity to create, and mask, new forms of sex discrimination through legislative silence. This is exactly what Canada has done.

Canada has treaty responsibilities that it has to live up to. We all know this by now. Yet since 1985, and through an amendment to The Indian Act, Canada has been specifically targeting Indigenous children in its goal to eliminate these treaty responsibilities. In 1985, The Indian Act was amended to conform to section 15 of the Canadian Charter of Rights and Freedoms which prevents discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. Regardless of the implementation of the Charter, for several reasons the legislative change was failed remedial legislation in that it did not eliminate all of the sex discrimination. In many situations the change shifted the discrimination onto the grandchildren of Indian women. 

Through Sharon McIvor's efforts The Indian Act was yet again amended in 2011 to remove the continued sex discrimination. This process of legislative change, though, was once again failed remedial legislation in that it did not remove all of the sex discrimination.

Offering one example here, children born to Indian women in common law relationships continue to be denied Indian status registration and therefore their treaty rights. Because the Supreme Court of Canada refused to hear her appeal, McIvor is pursuing this matter at the international level.

 Notwithstanding this continued sex discrimination and the long-time effort to eliminate it, the 1985 changes to The Indian Act that created a legislative silence or gap in law also took rights away from children born to mothers registered under 6(2) of The Indian Act and whose birth certificate lacks a father’s signature. What is bewildering about this legislative change is that prior to 1985, “illegitimate” children born to Indian mothers were the same as their mothers; Indians.

What Canada did in 1985 was remove an offensive word in law, that being the word "illegitimate," while at the same time removing the protective measures associated with it. In this way, since 1985, Canada denies many First Nations children Indian status registration and their treaty rights due to the lack of a father's signature on their birth certificate.

I must add that today it does not matter if a child is born inside or outside of the institution of marriage, if a father's signature is missing on a child’s birth certificate, the father is assumed to be non-Indian. Disturbingly, this practice also occurs in situations of rape and other forms of sexual violence such as incest, sexual slavery and prostitution. What is more, the mothers of these First Nations children do not get child support payments.

What makes this situation even worse is that many of these children are born in northern First Nations communities where their basic needs of clean water and sanitation -- let's face it, we all hydrate and we all urinate -- are not met, and as such they are very much in need of the treaty rights they are entitled to through Indian status registration, such as housing, education, and health care. These treaty rights, as many know, are the very rights that Canada is founded on.

Indigenous children denied their treaty rights

I can imagine this knowledge is hard to understand, both in terms of the legal/policy complexity of the issue and more so in the terms of the absolute absurdity of Canada in doing this. I realize many readers may be asking, 'What exactly are you talking about, Lynn? Can you tell me that again?'

As stated, to comply with the Charter, in 1985, the federal government of Canada removed the word "illegitimate" and associated protective provisions from The Indian Act and became silent in law in situations where a father's signature is missing on a child's birth certificate. Then, at the departmental level, Canada developed a policy and practice that denies many Indigenous children whose mother is registered under 6(2) of The Indian Act. When a father's signature is missing, a departmental practice assumes the father is a non-Indian. Through this policy assumption, Canada places First Nations children born to Indian mothers registered under section 6(2) of The Indian Act, and whose father's signature is missing on their birth certificate, in a worse off situation. As a result of this negative assumption of paternity, I estimate that as many as 25,000 children have been denied entitlement to Indian status registration and consequently their treaty rights.

In sum, what this amounts to is that during an important moment of legislative and human rights remedial action, Canada did the very opposite of meeting the standard outlined on the Charter of Rights and Freedoms, actually making the situation worse. Removing the word "illegitimate" from legislation, and becoming silent on an issue in law, and then creating and implementing a policy assumption that is more oppressive is the worst form of legislative and policy manipulation I can think of. Is this what legislative reform in Canada is about, an opportunity to make things worse at the policy and practice level?

Lastly, in May 1990 and in December 1991 Canada signed and ratified the United Nations Declaration on the Rights of the Child, where Article 3 states the best interests of the child must be a top priority.

Clearly this process of legislative and policy manipulation is not in the best interest of First Nations children. First Nations children are deserving of more than having their needs and their treaty rights manipulated by Canada's legislation and policy makers. What is it about Canada, our parliamentarians, and our law and policy makers? Is Canada a kakistocracy that lies to and manipulates its citizenry? Canada, are you proud?

Fight Sex Discrimination in the Indian Status Registration Provisions of the Indian Act, sign this peition!

Dr. Lynn Gehl is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, is an outspoken critic of the Ontario Algonquin land claims and self-government process, and recently published a book titled Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts. You can reach her at lynngehl[at]gmail[dot]com and see more of her work at 

Photo: Shelagh Day 



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