Bill C-3, an Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) was introduced by the Conservatives on March 11, 2010, ostensibly to “fix” the sex discrimination in the status registration provisions of the Indian Act, R.S.C. 1985, c. I-5. The B.C. Court of Appeal ruled in Nov. 2009 that section 6 of the Indian Act violated section 15 of the Charter in McIvor v. Canada (Registrar of Indian and Northern Affairs).
But if Bill C-3 passes, Canada will continue to discriminate against Aboriginal women in legislation.
This issue has a long history. Since the 1800s the racist, sexist Indian Act defined “status” Indians, thus identifying those who could (and at one time, must) live on reserves and participate in their political and cultural activities; and who were subject to the Indian Act, and eligible for the meager programs made available to status Indians by the federal government. The Indian Act defined an Indian as “a male Indian, the wife of a male Indian or the child of a male Indian” as per the practices of colonial patriarchy. Thus, Indian women who married “out” were stripped of their status and could not pass it on to their children, while Indian men who married “out” or “in” gave 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, supported by the organization Indian Rights for Indian Women, challenged section 12(1)(b) of the Indian Act as violating the 1960 Canadian Bill of Rights guarantee of sex equality. They lost at the Supreme Court of Canada in 1973, in a ruling that held that equal discrimination against all Indian women amounted to equality under the law (see Attorney General of Canada v. Lavell,  S.C.R. 1349). Sandra Lovelace subsequently successfully challenged Canada and s.12(1)(b) for violating the International Covenant on Civil and Political Rights; the UN Human Rights Committee found the status provisions deprived women and their children of the fundamental right to enjoy culture in their communities (see Lovelace v. Canada, CCPR/C/13/D/24/1977, 30 July 1981). The new equality guarantees in the Canadian Charter of Rights and Freedoms came into force, which is when the Mulroney Conservative government moved to amend the status provisions of the Indian Act with Bill C-31.
The fix was incomplete. Bill C-31 retained the full Indian status of Indian men, their wives and children, but reinstated women and children who had lost status because of sex discrimination to a second-class category, s.6(1)(c) rather than full s.6(1)(a) status. As a result, Indians who never lost status confer status to their children and grandchildren, while reinstated Indians have a diminished status that they can confer to their children, but not to their grandchildren.
Under section 15 of the Charter, Sharon McIvor challenged the continuing sex discrimination that gives preferred Indian status to men as transmitters of status and to descendants of male Indians as compared to those descended from female Indians. McIvor won in the B.C. Supreme Court and in the B.C. Court of Appeal in 2007 and 2009. As a result, the federal government has to, once more, amend the Indian Act.
Now, another Conservative government is purporting to “fix” sex discrimination in the Indian Act. But Bill C-3 would continue to discriminate, and to confer a weaker form of “status” on the 2010 reinstatees. Although the Conservatives say that Bill C-3 will provide access to Indian status to 45,000 descendants of Aboriginal women who were previously ineligible, it will still not give them equal registration status. The descendants of women will still have less ability to transmit their status than the descendants of men. The legislated inability of one Indian parent to transmit status, known as the second generation cut-off, will apply to them 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 no other reason than sex discrimination. For example, grandchildren who trace their Aboriginal descent through the maternal line will continue to be denied status if they were born prior to Sept. 4, 1951 while grandchildren who trace their Aboriginal descent through the male line will not. Why perpetuate sex discrimination against these older Aboriginal women and men (and their children and grandchildren), merely because they are maternal rather than paternal line descendants? The Sept. 4, 1951 cut-off seems based on the false assumption that sex discrimination only entered the Indian Act status registration provisions with the introduction of the double-mother rule. (From 1951 to 1985, the double-mother rule denied status to descendants of some male Indians if their fathers and grandfathers had both married “out”.)
But this is clearly wrong. The Indian Act has privileged male descent since the last century. Male lineage descendants born prior to 1951 get full s.6(1)(a) status.
Since Bill C-3 proposes only to correct the sex discrimination against the grandchildren of women who lost status by marrying “out”, it continues to exclude grandchildren descended from status Indian women who co-parented with non-status men in common law unions, as well as female children and grandchildren of status Indian men who co-parented 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 are not excluded.
The Conservatives have offered to conduct broad consultations with bands and Aboriginal organizations following passage of Bill C-3. Many Aboriginal organizations legitimately want to end the colonial regime that the Indian Act represents. Genuine consultation by governments with Aboriginal peoples on self-government, land claims, environmental law, resources, and child welfare is urgently needed. But consultation, and the urgent Aboriginal policy agenda, must not obscure the need to eliminate sex discrimination from the Indian Act. Aboriginal peoples wish to find strategies now for exiting from colonialism. But the descendants of Aboriginal women are entitled to exit now from legislated patriarchy, so that they too can exit colonialism as equal partners.
The Indian Act violates Charter equality guarantees and several pieces of international law to which Canada is signatory. It also violates the 2009 UN Declaration on the Rights of Indigenous Peoples, the new international standard for indigenous rights, guaranteed equally to men and women.
It took McIvor 20 years to take her case to the B.C.C.A. Surely Aboriginal women and their descendants are entitled to equality under Canadian law now. Bill C-3 should end sex discrimination in the Indian Act, once and for all.
Bill C-3 had second reading on March 29, and is currently before the Committee on Aboriginal Affairs and Northern Development. Clause by clause reading will start the week of April 26. Sharon McIvor’s testimony to the Committee on April 13 can be found here.
Consider sending an email to Minister of Indian Affairs and Northern Development, Chuck Strahl; Opposition party leaders: Duceppe, Ignatieff and Layton; and to the members of the Standing Committee on Aboriginal Affairs: Bruce Stanton, Rick Clarke, LaVar Payne, John Duncan, Earl Dreeshen, Greg Rickford, Anita Neville, Todd Russell, Larry Bagnell (Liberals); Jean Crowder, Carol Hughes (NDP); Marc LeMay and Yvon Levesque (BQ).
Shelagh Day is the Chair of the Human Rights Committee, Canadian Feminist Alliance for International Action. Joyce Green is a professor of Political Science at the University of Regina. This story first appeared in the Women’s Court of Canada blog.