The Ontario Court of Appeal. Photo credit: Lynn Gehl

While many people are aware of the newly entitled registrants resulting from the Stéphane Descheneaux 2015 court victory, few people are aware of the newly entitled registrants resulting from Lynn Gehl’s court victory challenging Indian and Northern Affairs Canada’s unknown and unstated paternity policy.

Through Bill S3, An Act to Amend the Indian Act (the elimination of sex-based discrimination), the Descheneaux remedy will result in as many as 35,000 new registrants; this is an estimated finite number. The Gehl remedy, though, will result in as many as 100,000 new registrants with no finite number, as the policy remedy applies to all situations where the father is unknown.

Lynn Gehl’s 2017 Court of Appeal victory creates more than 100,000 Indians

The issue of unknown and unstated paternity was a form of sex discrimination created through the 1985 amendment to the Indian Act. As many know by now, I was denied Indian status registration due to an unknown and unstated paternal grandfather. It took me more than 30 years to move through my family’s oral history, archival research, and the litigation process. In April 2017, Ontario’s highest court, the Ontario Court of Appeal, ruled that this sex discrimination was unreasonable and I was granted status entitlement.

My court case victory was achieved while Bill S-3, An Act to Amend the Indian Act (the elimination of sex-based discrimination), was moving through parliament due to the 2015 Stéphane Descheneaux and Tammy and Susan Yantha court victory, so the required remedy for unknown and unstated paternity, alternatively “the Gehl clauses,” will be included in the Bill. As expert witnesses in my court case, demographers Stewart Clatworthy and James S. Frideres agreed that the estimated number of births affected by Indian and Northern Affairs Canada’s (INAC) unstated paternity policy, as of 2004, totalled over 60,000. While the majority of these people were relegated the lesser form of 6(2) status, 15,000 people were actually denied status. Through the Gehl clauses now codified in Bill S-3, these 45,000 people will be entitled to 6(1) status; and 15,000 will be newly entitled as 6(2).

There are more…

As we think about these 2004 numbers, we need to keep in mind that they only represent births up to 2004. As of 2017 the numbers will be much higher. Through extrapolating these estimated numbers forward to 2017, it is my suggestion that 77,000 people may be entitled of 6(1) status and as many as 25,000 people may be newly entitled to 6(2) status. This is more than 100,000 births affected by the Gehl court victory.

There are more again …

People registered under section 6(1), the stronger form of Indian status, are able to pass it on in their own right. What this means is that the 77,000 individuals now entitled to 6(1) Indian status are also now entitled to pass on status to their children. If these 77,000 individuals, assuming they are all of child bearing age, had or have one child, all of them will also now be entitled, whereas if these 77,000 individuals have two children the number doubles to 154,000 people who will now be entitled to Indian status registration.

In summary, through the Gehl court victory a large number of section 6(2) people are now entitled to section 6(1) status, the stronger form of Indian status, where they will be able to pass it on to their children. Based on them having two children; and adding this number to the 25,000 now entitled to 6(2) status, through Gehl we could see as many as 179,000 new registrants for Indian status.

And there are more again…

What is more, the number of new registrants will continue to change over time because the Gehl clauses prevent Indian and Northern Affairs Canada from applying the assumption that unknown and unstated fathers are non-Indian as defined by the Indian Act. My point being, there is no finite known number that the Gehl clauses will create.

Descheneaux’s and Yantha’s 2015 court victory creates 35,000 Indians

Stéphane Descheneaux was unable to pass status because he was only registered as a 6(2) Indian. This was the result of his matrilineal descent, meaning it was his grandmother versus his grandfather who was Indigenous. This is known as the cousins issue in that Stéphane’s second cousin born through the patrilineal line was entitled to 6(1)a status.

In Susan Yantha’s situation, as a girl child born out of wedlock pre 1985 to an Indian man and a non-Indian woman, she was only registered as a 6(2) Indian which meant she could not pass on status to her daughter Tammy, where as her hypothetical brother born out of wedlock was entitled to 6(1)a. This is known as the siblings issue.

It has been said that the resolution of the cousins and siblings issues will create between 28,000 to 35,000 Indians.  It is the Descheneaux-Yantha case that has resulted in Bill S-3, An Act to Amend the Indian Act (the elimination of sex-based discrimination), that is currently before Parliament.

Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. In 2017, she won an Ontario Court of Appeal case on sex discrimination in The Indian Act, and is an outspoken critic of the Algonquin land claims process. Recently she published Claiming Anishinaabe: Decolonizing the Human Spirit with the University of Regina Press. You can reach her and see more of her work at her website.

Photo: Lynn Gehl

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