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Pam Palmater

Tag: McIvor

  • Why is Trudeau Government Opposing Charter Equality for Indigenous Women?

    (Originally published in Lawyer’s Daily on June 21, 2017 – edited)

    Shortly after Confederation, the federal government used its jurisdictional powers over “Indians and lands reserved for the Indians” in s. 91(24) of the Constitution Act 1867, to enact the Indian Act, 1876 — making it nearly as old as “Canada” itself. For well over a hundred years, the Indian Act has included provisions intended to legislate Indians out of existence — a form of forced assimilation — that primarily targeted Indigenous women and their descendants for enfranchisement (loss of status as an “Indian” and removal from the reserve as a member). Although there have been many amendments to the act over the years, the federal government, through the Indian Registrar, retains exclusive authority over the legal criteria for determining who is an Indian. Unfortunately, self-declared feminist Prime Minister Justin Trudeau’s elite feminist team of ministers is actively working against gender equality amendments for the Indian Act’s discriminatory registration provisions. Under previous versions of the act, Indian women who married out (married a man not registered as an Indian) lost their Indian status, as did her children. Indian men who married out kept their Indian status and their non-Indian wives and children gained Indian status as well. This created a deep inequality that has been carried forward through successive generations despite the many human rights protections enacted in Canada over the same time period. Many Indigenous women fought against these discriminatory provisions, including Jeannette Corbiere-Lavell and Yvonne Bedard, who lost their case at the Supreme Court of Canada in Lavell v. Canada (Attorney General) [1974] S.C.R. 1349. Sandra Lovelace (now Sen. Sandra Lovelace Nicholas) won her human rights claim against Canada at the United Nations Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) requiring Canada to amend the Indian Act in 1985. However, the 1985 Bill C-31 amendments did not go far enough to remedy the ongoing gender inequality between Indian men and women and their descendants in the transmission of Indian status, so Sharon McIvor was forced to bring a s. 15 Charter challenge against Canada (The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11). Her win on appeal McIvor v. Canada (Registrar, Indian and Northern Affairs) 2009 BCCA 153 forced Canada to amend the act once again in 2010 with the Bill C-3 amendments, but Canada’s reluctance to remedy all gender discrimination led to the current case underlying the 2017 Bill S-3 proposed amendments in Descheneaux v. Canada 2015 QCCS 3555. At issue in all of these cases was the federal government’s staunch refusal to once-and-for-all remedy all remaining vestiges of gender inequality between Indian men and women in the transmission of Indian status. What is unique about the proposed Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) is not so much the need to address the Descheneaux decision (which declared various discriminatory sections of the Indian Act inoperative); but the stark political differences between the Senate and the House on the fundamental question of whether Indigenous women and their descendants deserve gender equality under the Indian Act. After hearing the passionate testimonies of Indigenous women lawyers and experts, First Nation organizations and other legal witnesses; the Senate unanimously supported an amendment to Bill S-3 intended to grant the same status to Indian women and their descendants as that held by Indian men and their descendants, referred as the “6(1)(a) all the way” amendment. The importance of gender equality for Indigenous women united Liberal, Conservative and independent senators alike. Minister Carolyn Bennett’s refusal to accept the amendment pitted the Senate against the House, whose Aboriginal Affairs Committee rejected the gender equality amendment and Parliament will likely vote to send the bill back to the Senate with a new title to respond to Descheneaux and not fully eliminate sex-based inequities. The fact that Indigenous women must continue to battle Canada for equality is shocking in 2017 given that the Charter’s section 15 guarantee of equality between men and women has constitutional status. The Charter’s well-established case law on substantive equality and Aboriginal rights leaves little doubt about Canada’s legal and constitutional obligation to remedy gender inequality for Indigenous women — but it is by no means the only legal protection against sex discrimination in Canada. Section 3(1) of the Canadian Human Rights Act R.S.C., 1985, c. H-6 prohibits discrimination on the grounds of race and gender. Section 35(4) of the Constitution Act, 1982 ensures that Aboriginal and treaty rights are guaranteed equally as between males and female persons. The United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, Oct. 2, 2007, A/RES/61/295 (UNDRIP), which Trudeau has specifically promised to implement into law in Canada, includes article 44 which ensures that all the rights and freedoms contained in UNDRIP are guaranteed equally to male and female Indigenous peoples. It must be remembered that cabinet ministers were directed by Trudeau to fulfil their mandates based on the principle that there is no relationship more important to Canada, than the one with Indigenous peoples. It was therefore refreshing to hear former Minister for the Status of Women Patti Hadju acknowledge the “long-standing, systemic discrimination that Indigenous women and girls experience in this country”; that “intersection of racism and sexism greatly increases the vulnerability of Indigenous women” and that the “racism brought on by colonization has had devastating impacts on Indigenous women’s power, their status, their role in their communities and their economic situations.” Yet, the current Minister for the Status of Women, Maryam Monsef, is silent on the issue of Bill S-3 and Justice Minister Jody Wilson-Raybould and Indigenous Affairs Minister Bennett continue to actively obstruct the Senate amendments to fully remedy gender discrimination in the Indian Act. Minister Bennett and Minister Raybould-Wilson are responsible for creating this standoff over equality in the Senate and House. No one wanted it to come to this, but here we are with the fundamental equality rights of Indigenous women in the balance. It is now up to the Senate of Canada to stand firm in its original stance defending both the Charter’s integrity and the equality rights of Indigenous women. The next steps may be hard and they may be political uncomfortable — but for Indigenous women, it is a matter of life and death. Discriminatory exclusion under the Indian Act is one of the root causes of murdered and missing Indigenous women — it’s up to the Senate now to stand with the Charter and defends gender equality. The link to the original article as published in Lawyer’s Daily can be found here: https://www.thelawyersdaily.ca/articles/4019/why-is-trudeau-government-opposing-charter-equality-for-indigenous-women-pamela-palmater?category=columnists Please see my related video on my Youtube channel: https://www.youtube.com/watch?v=I2p_ScohgJc&t=1167s

  • McIvor is Just the Start – The Indian Act is Full of Discrimination

    So by now, everyone has heard of the McIvor case and knows that the registration provisions of the Indian Act, otherwise referred to as “status”, will be amended as a result. The question remains: what are we going to do about the discrimination that won’t be addressed by those amendments? For anyone who hasn’t heard of Sharon McIvor v. Canada – a brief overview of the case is necessary. Sharon McIvor is a status Indian and member of the Lower Nicola Band in British Columbia. However, she wasn’t always a status Indian. For most of her life, she was a non-status Indian because she traced her ancestry through her maternal side. Had she been able to trace her ancestry through her paternal side, status would not have been a question. In 1985 when Bill C-31 was passed and the Indian Act was amended, McIvor applied for status. When her application for status was denied by Indian and Northern Affairs Canada (INAC), she immediately appealed the decision to the Registrar at INAC. She later filed a claim in court alleging gender discrimination in section 6 of the Indian Act. While INAC had reconsidered her application and gave her status under section 6(1)(c) of the Indian Act, her son Jacob was only entitled to section 6(2) status and her grandchildren were not entitled at all. It was for the sake of her grandchildren that she pursued the claim in court despite the fact that she was already registered. She argued that her inability to transmit Indian status to her grandchildren, while Indian men in her position could do so, amounted to gender discrimination. More importantly, she argued that registration as an Indian impacts both individual identity and communal membership and therefore stands for more than just access to programs and services. At trial, the court agreed with McIvor and found that section 6 of the Act discriminated between the descendants of female Indians versus male Indians born before 1985 and thus violated section 15 of the Canadian Charter of Rights and Freedoms (Charter). The court crafted a complex remedy to fix the discrimination which might have been somewhat difficult to apply and would have left band membership unaffected. So, the matter was appealed. The Court of Appeal for British Columbia agreed with the trial court that section 6 of the Act discriminated on the basis of sex (gender) contrary to section 15 of the Charter. The Court of Appeal found that the remedy at trial was too broad and seemed to limit the extent of the discrimination as between those affected by the double mother clause (children whose mother and paternal grandmother were non-Indians by birth) and Indian women who married out (married non-Indian men). The subsequent appeal to the Supreme Court of Canada was rejected. Canada then embarked upon an “engagement” process – accepting submissions or comments from Aboriginal peoples and organizations, but not officially consulting with Aboriginal peoples. The process was also very rushed – from August to November 2009. Canada’s reason for proceeding this way was due to the need to have legislation drafted before April 1, 2010. However, by proroguing Parliament, Canada’s excuse that it needed to rush is somewhat questionable. Canada offered two amendment options to Aboriginal peoples for consideration: Specifically, the amendment concept under consideration would provide Indian registration under s. 6(2) of the Indian Act to any grandchild of a woman: (a) who lost status due to marrying a non-Indian; and (b) whose children born of that marriage had the grandchild with a non-Indian after September 4, 1951 (when the “double mother” rule was first included in the Indian Act). To accomplish this, section 6(1) of the Indian Act would be amended to include any person in the situation of the “child” mentioned in (b) above. A more narrow amendment concept, which the Government does not propose to pursue, would limit its application to situations where the woman’s child (the subsequent parent of the grandchild with a non- Indian) was born before 1985. In either case, the band membership provisions of the Indian Act would also be amended to include these registrants. McIvor has commented that these proposed amendments do not address the gender discrimination raised in her case. For example, the grandchildren of Indian women who married out will only be entitled to registration as an Indian under section 6(2). Yet, the grandchildren of Indian men who married out are registered under section 6(1). What are we, as Aboriginal people going to do about the blatant gender discrimination that remains in the Act? Perhaps we need to think about pursuing the McIvor case in the international human rights forum. I don’t think we have enough time to wait for multiple cases to each work their way through domestic courts as McIvor‘s case alone took over 24 years. Canada has too much a vested interest in our lands and resources to amend the Act in any meaningful way. How many more generations of Aboriginal peoples will be denied their individual identities and be excluded from their communities because of Canada’s discriminatory Indian Act if we wait another 10, 20, 50 years? How many more generations, like mine and my childrens’ will miss out on desperately needed education assistance, medical benefits and the opportunity to contribute to the capacity and development of our communities? McIvor’s case only dealt with one small group of Aboriginal people who are discriminated against. There are numerous ways in which the registration provisions of the Act discriminate against Aboriginal peoples: (1) Gender discrimination – An individual traces their Aboriginal ancestry through their maternal line (mother, grandmother, greatgrandmother) instead of through the paternal line (father, grandfather, greatgrandfather); * Although the amendments to the Act in response to McIvor will address some of these people, it will not address of those affected by this kind of gender discrimination. (2) Arbitrary cut-off date – The date on which a person was born means that some pre-1985 babies have status, but those born post-1985 may not; (3) Illegitimate siblings – Brothers and sisters from the same family may or may not have status based on whether their parent was male or female and whether the child was male or female and born out of wedlock; (4) Unstated paternity – If an unwed Indian woman does not name the father of her child, there is a legal presumption that the father did not have status – this results in the child having lesser or no status; (5) Métis scrip takers – Aboriginal peoples who took scrip are not eligible for status regardless of their actual cultural identities as Indians versus Métis; (6) Second generation cut-off – Indians may be refused status because one of their parents do not have status – this equates to a blood quantum requirement that discriminates against those children of mixed marriages; (7) Non-Aboriginal preference – (a) Non-Aboriginal women who gained status through marriage are allowed to keep their status and pass on better status to their children than Aboriginal women and their children; (b) Adoptions – Non-Aboriginal children who are adopted into Indian families can have better status than Aboriginal children born of Indian parent(s). As can be seen by the above, there are numerous discrimination issues that need to be addressed in the Act. It is time for Canada to pull itself out of the dark ages, and put some action behind its apology. When Canada apologized for residential schools and the assimilatory attitudes upon which that policy was based – it seemed to forget that the Indian Act’s status provisions were designed to assimilate Aboriginal peoples into the dominant society and continues to do so. Canada does not have the right or authority to determine the individual or communal identities of Aboriginal peoples. Canada’s authority under section 91(24) may give it the legislative jurisdiction to manage the relationship with “Indians and lands reserved for the Indians” but that does not confer a right to determine our identities. This is a right that is inherent to the right of Aboriginal peoples to be self-determining. Canada has negatively impacted our identities for generations – it’s time we were able to heal and re-assert our own identities. No where in out treaties did it say that there was a cut-off date for determining Aboriginality nor was registration even contemplated when our treaties were signed. It is time to assert our authority in this area. True Nations do not let other Nations tell them how to determine their own citizenship. Our treaties were negotiated by our ancestors for the benefit of our “heirs and heirs forever”. It is time for Canada to undo the harm it has caused. I believe that a whole-scale review of the Indian Act is necessary to bring all provisions of the Act in line with the Charter, the Canadian Human Rights Act, the Constitution Act and all international human rights covenants to which Canada is bound. Obviously, amendments to the Indian Act would be an interim solution until such time as modern treaty, land claim and/or self-government agreements have been negotiated. The only question is whether Canada is willing to put action behind its apology and whether Aboriginal people are ready to protect their future generations?