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Pam Palmater

Tag: registration

  • Bill S-3 Amendments to the Indian Act and the Never-Ending Battle for Equality for Indigenous Women

    The Parliamentary Standing Committee on Indigenous and Northern Affairs (INAN) is currently studying Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities). As its title suggests, this bill should eliminate the remaining gender discrimination contained within the Indian Act’s registration and membership provisions – but it does not. The Indian Act’s registration provisions are already a complex mess of rules intended to legislate Indians out of existence – and the government’s version of the bill does not make it any better. http://www.pampalmater.com/category/bill-s-3/

    However, the Senate heard from First Nations, Indigenous and women’s advocacy organizations, Indigenous women, and legal experts during their initial study of the bill and agreed with the consensus opinion that the government’s bill falls short of eliminating gender discrimination. They introduced an amendment that addresses the bulk of the remaining discrimination – only to find the government fighting them all the way.

    Bill S-3 is now being studied in the House and the government continues to defend their discriminatory version of the bill. We must continue to put pressure on Canada to address this long-standing injustice against Indigenous women and our children.

    What follows is a chronology that will help provide context for how we got here:

    1968 – Mary Two-Axe Early (Kahnawake), formed the Indian Rights for Indian Women to advocate for gender equality in the Indian Act. Mary had married a non-Indian, lost her status, and her band attempted to evict her as a result.

    Under older versions of the Indian Act, Indian women who married non-Indian men lost their status, as did their children. By contrast, Indian men who married non-Indian women kept their status and their non-Indian wives gained status – ensuring their children also had status.

    Mary’s advocacy help gain media attention on the issue and the concurrent Royal Commission on the Status of Women included recommendations to amend these discriminatory provisions.

    http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-eng.htm

    1973 – Jeanette Corbiere-Lavell (Wikwemikong) and Yvonne Bedard (Six Nations) lost their case at the Supreme Court of Canada which challenged the marrying out provisions of the Indian Act. The Court held that the Bill of Rights, which guaranteed equality before the law, couldn’t invalidate the Indian Act;

    https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5261/index.do

    1974 – Native Women’s Association of Canada was formed to advocate for the rights of Indigenous women including their exclusion from registration and band membership due to Indian Act’s discriminatory “marrying out” rules (loss of Indian status/registration when an Indian woman marries a non-Indian man);

    1981 – Sandra Lovelace (Tobique) [now Senator Sandra Lovelace-Nicholas] won her human rights complaint at the United Nations against the discriminatory Indian Act rules;

    http://hrlibrary.umn.edu/undocs/session36/6-24.htm

    1982 – Former Prime Minister Pierre Elliot Trudeau helps patriate the Constitution, enacting the Charter of Rights and Freedoms, which includes section 15, an equality rights guarantee;

    http://laws-lois.justice.gc.ca/eng/Const/page-15.html

    1985 – Bill C-31 amends the Indian Act in response to the Lovelace case to restore Indian status and band membership to Indigenous women who lost it through marrying out, but the women were re-instated under section 6(1)(c), instead of full 6(1)(a) status and thus their entitlement to transmit status was more restricted than their Indian male counterparts. They could transmit status to their children [albeit only half status under section 6(2)] but not their grandchildren;

    Section 6(1) status means you can pass on status to your children regardless of who you marry/partner; section 6(2) status means you cannot pass on status on your own – you must parent with another status Indian or your children have no status.

    1985- 2010 – Sharon McIvor (Lower Nicola Indian band) challenges the ongoing (residual) gender discrimination in the Indian Act registration provisions and both trial and appeal level courts agree it is discrimination. The Supreme Court of Canada refuses to hear an appeal.

    2010 – Bill C-3 amended the Indian Act in response to the McIvor case to remedy some aspects of gender discrimination, but leaves much of the discrimination unaddressed. This failed remedial legislation inspired more litigation.

    2010 – Sharon McIvor immediately files a human rights petition in 2010 to the United Nations Human Rights Committee because of Canada’s failure to remedy all gender discrimination in Indian registration.

    http://www.fafia-afai.org/wp-content/uploads/2015/02/6-McIvor-Petition-to-Human-Rights-Committee-2010.pdf

    2015 – Stephane Descheneaux, Susan Yantha and Tammy Yantha (Abenakis of Odanak) win their discrimination claim at the Quebec’s Superior Court against the Indian Act’s registration provisions that continue to discriminate between the descendants of Indian women and Indian men.

    https://www.canlii.org/en/qc/qccs/doc/2015/2015qccs3555/2015qccs3555.html

    2016 – Bill S-3 is introduced in the Senate with the stated intention of “eliminating sex-based inequities” from the Indian Act. Consensus from the First Nations, Indigenous women, advocacy organizations and legal experts called as witnesses before the Senate Committee on Aboriginal Peoples (APPA) is that Bill S-3 does not eliminate all sex-based inequities.

    While Indian and Northern Affairs Canada (INAC) and Justice Canada (DOJ) claim that the bill is Charter compliant (i.e., there is no more gender discrimination), the expert witnesses highlight that the core of the gender discrimination is not addressed by the bill.

    As a result, the Senate suspended consideration of the bill and instructed INAC to seek an extension from the court so it could draft a bill which did the job it claimed to be doing.

    April 2017 – Lynn Gehl wins her discrimination complaint against INAC on the issue of unknown/unstated paternity which forces INAC to come up with additional amendments to Bill S-3 to address this as well;

    http://www.oktlaw.com/dr-gehl-wins-appeal-in-indian-act-sex-discrimination-case/

    2017 – Study of Bill S-3 continues in the Senate and the same witnesses express the same concerns that INAC did not use the court extension to draft amendments to eliminate all gender discrimination in the Indian Act.

    One of the core areas of concern is the failure of the previous amendment (Bill C-3) to remedy gender discrimination for Indian women born prior to 1951 – an issue INAC referred to as “complex discrimination” best left for Phase 2 i.e., future discussions.

    Having little faith in the many Phase 2 promises from past amendments, Indigenous women asked the Senate to amend Bill S-3 to address all gender discrimination. To this end, Senator Marilou McPhedron tabled the suggested amendment, referred to as “6(1)(a) all the way” which would make entitlement to registration for those born prior to April 17, 1985 equal as between Indian men and Indian women and their descendants – including those born pre-1951.

    Letters of support for this amendment have poured into the Senate and Minister’s office by First Nations, First Nation organizations, women’s groups, individuals and families. Minister Bennett responds by fear-mongering saying that this amendment could entitle 2 million people and insists that the government cannot act without consulting First Nations. 

    Key myths and facts about Bill S-3:

    MYTH #1:

    Bill S-3 is Charter compliant and addresses all known gender discrimination.

    FACT:

    Every time the federal government claims the Indian Act is Charter compliant, it has been proven wrong in court. Furthermore, although their initial claim was that Bill S-3 addressed all known gender discrimination, Minister Bennett later admitted that “we are not doing the whole thing in terms of discrimination”.

    https://www.theglobeandmail.com/news/politics/senators-amend-legislation-aimed-at-removing-sexism-from-indian-act/article35110342/

    It should also be noted that the current Liberal Justice Minister Jodi Wilson-Raybould defends this bill, yet when she was the Regional Chief of the BC Assembly of First Nations she wrote a letter to government saying that pre-1951 cut-off date was discriminatory and should be removed. It was also the former Liberal government that introduced the “6(1)(a) all the way” amendment during debate on Bill C-3 study. They agreed with removing all the discrimination then, but not now.

    MYTH #2:

    Minister Bennett claims millions of new Indians will be registered if this amendment passes.

    https://www.theglobeandmail.com/news/politics/senators-amend-legislation-aimed-at-removing-sexism-from-indian-act/article35110342/

    FACT:

    There are less than 900,000 registered Indians in Canada. Remedying gender discrimination for Indian women who married out pre-1985 and entitling descendants of women to status on the same footing as descendants of Indian men, could not possibly result in 2 million new registrants. Many will have passed away already, many will not apply and many already have status – they would only be getting a higher level of status,but not adding new numbers. Every time the Indian Act has been amended, INAC has grossly over-estimated the numbers to manufacture fear and dissent. Sadly, but predictably, the AFN is also engaged in fear-mongering along the same lines as INAC.

    No one cared about registration numbers when Indian men and white women were being registered – it only seems to be an issue now because its Indian women. 

    MYTH #3:

    All these new registrations will cost too much money.

    FACT:

    Canada adds 800,000 new Canadians every year from new births and new immigrants – all of whom are entitled to the full range of social programs and benefits at double or triple what is paid to First Nations for the same services. A one-time addition to the Indian register will not break the bank. More importantly, everyone is Canada is entitled to gender equality – regardless of any potential costs. Further, INAC already testified before Senate that they do not expect costs to increase for First Nations as the majority of new registrants will live off reserve.

    MYTH #4:

    Canada needs time to consult with First Nations about whether to amend the Indian Act to eliminate gender discrimination.

    FACT:

    The issue of gender discrimination in the Indian Act (and how to remedy it) is not a new issue. First Nations and Indigenous women’s organizations have been engaged with INAC for many decades on how to amend the Indian Act. Consultations, engagement sessions, information sessions and various discussion tables have been ongoing since before the 1985 amendments. Even if more than forty years of consultation had not already taken place, and it has, the government cannot legitimately consult on whether to continue to discriminate against Indigenous women. It has a constitutional and fiduciary duty not to discriminate. This government has no choice legally but to remedy the discrimination.

    MYTH #5:

    It is ok to leave the issue of gender discrimination for another day.

    FACT:

    Section 15 of the Charter of Rights guarantees equality between men and women.

    Section 35(4) of the Constitution Act, 1982 guarantees equality between Indigenous men and women with regards to Aboriginal and treaty rights.

    Section 3 of the Canadian Human Rights Act prohibits discrimination in the provision of federal programs and services on the basis of gender.

    Article 44 of the United Nations Declaration on the Rights of Indigenous Peoples guarantees equality between Indigenous men and women for all the rights included in the Declaration but specifically with regards to belonging to one’s Indigenous Nation.

    Various international human rights bodies have long recommended that Canada once and for all eliminate gender discrimination in the Indian Act and even  noted that it is one of the root causes of murdered and missing Indigenous women and girls.

    It is long past time that Canada finally amend the Indian Act and eliminate gender discrimination in Indian registration. They do not need more court cases, UN reports or a national inquiry to justify taking action.

    At this point, it’s simply a matter of political will.

    Please use the following link to a template letter to support these amendments.

    http://fafia-afai.org/en/send-a-letter-to-federal-ministers-encouraging-them-to-support-indigenous-womens-equality-and-the-61a-all-the-way-amendment/

  • UPDATED – Bill C-3 – Gender Equity in Indian Registration Act

    Sharon McIvor went to court to challenge the gender discrimination in section 6 of the Indian Act, 1985. Registration under the Indian Act provides greater entitlements to Indian men who married out (married a non-Indian) and their descendants as compared with Indian women who married out. McIvor won both at trial and on appeal and the Supreme Court of Canada refused to hear any further appeal. While the trial court would have offered a broader remedy, the court of appeal limited the scope of the discrimination and therefore made comments which suggested to Canada that it might get away with a minimalist amendment. (For further information on the McIvor case, see my previous blog entry). As a result of these legal proceedings, Canada embarked upon a very short “engagement” process. It chose not to consult with Aboriginal peoples about the need to amend the Indian Act and instead presented Aboriginal groups with their proposed amendment. Prior to the amendments being released, most understood that the proposed amendment would grant section 6(1) status to the children of Indian women who married out (they are currently section 6(2) Indians) and grant for the first time, section 6(2) status to the grandchildren. However, it now appears that this is NOT the case. On Thursday, March 12, 2010 Minister of Indian and Northern Affairs (INAC) Chuck Strahl introduced 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) into the House of Commons. This Bill will have to go through both Parliament and the Senate in order to become law. With regard to the grandchildren of Indian women who married out, the Bill seems to be on track with what Canada proposed during the engagement sessions held in 2009. INAC has published a document to explain how the legislative amendments are intended to apply to individuals who are the grandchildren of Indian women who married out. Canada explains that if an individual can answer the following three questions, they are encouraged to apply for registration: (1) Did your grandmother lose her Indian status as a result of marrying a non-Indian? (2) Is one of your parents registered, or entitled to be registered, under sub-section 6(2) of the Indian Act? (3) Were you born on or after September 4, 1951? The problem comes when the children (not grandchildren) of Indian women who married out ask themselves whether they qualify for a change in Indian status from section 6(2) to section 6(1)? The short answer is YES – if they had disentitled kids (non-status Indian kids) and NO – if they never had any kids or had kids with another registered Indian therefore making their children “entitled”. Although not highlighted in their publication which explains how the new amendments might affect individuals, in one of their explanation documents, INAC provides the following check list to determine which section 6(2) Indians will be entitled to registration under the proposed section 6(1)(c.1): (1) Did your mother lose status for marrying an Indian man? (2)Is your father a non-Indian? (3) Were you born AFTER your mom lost status but BEFORE 1985 (unless your parents married each other prior to 1985)? (4)Did you have a child with a non-Indian on or after September 4, 1951? Number 3 is somewhat complex and confusing and seems to be an awkward attempt to prevent the possibility that any of the descendants of Indian women might have enhanced status. However, number 4 creates a whole new division amongst section 6(2) Indians – (1) those who had “disentitled” (non-status) kids and those without kids, and (2) those with disentitled kids and those with status Indian kids. For the first time in the Indian Act’s history, one’s specific entitlement to Indian status will depend in part on whether one has children, and more specifically whether one has non-status Indian children. Status has always been determined based on one’s parents. This new section would now put the focus on the status of one’s children. This is absolutely ridiculous and completely unnecessary in order to acheive the goal of addressing the inequity between the decendants of Indian women versus Indian men. This Bill is supposed to address gender inequity and not create more inequity and division between siblings and families. This is a significant matter that must be addressed before the Bill is passed. At the same time that Canada announced the Bill, they also indicated that there would be a joint process developed in conjunction with Aboriginal organizations, First Nations groups and individuals to try to address the broader issues around registration, band membership, treaties and other cultural issues. But some non-Aboriginal people are asking the question: why should Canadians care about this legislation? This is actually a good question that needs to be addressed. When Prime Minister Stephen Harper stood before Parliament and apologized to the survivors of the residential school system, he did so on behalf of all Canadians. While there has been a great deal of debate about the adequacy of the apology and an obvious lack of corresponding action, the fact remains that an apology was made. PM Harper apologized for the assimilatory foundation upon which the residential school policy was based. The goal of assimilation was based on the idea that European culture was superior to Aboriginal cultures. In addition to the physical and sexual abuse experienced by Aboriginal peoples in residential schools, they also suffered from divided families and communities, and a loss of language, culture and identity that has resulted in significant social ills within Aboriginal communities both on and off-reserve. What Canadians have to remember is that the Indian Act and its predecessor legislation is based on the very same assimilatory foundation as the residential school policy and it has caused the very same division of families and communities, and loss of language, culture and identity. The Indian Act went even further to incorporate a male-preference for registration, membership, residency, voting rights, and access to Aboriginal and treaty rights as well as various programs and services. Canada essentially incorporated an idea into the Act that gave the message to communities that Aboriginal women were less worthy and less capable of passing on Aboriginal identity and culture. This has had an incredibly damaging affect on both Aboriginal women and their communities. Yet, Canada, as a Nation, does not stand for racism or sexism. Canada publically holds itself out to the international community as being a modern, democratic country which values human rights, gender equality and multi-culturalism. If this is indeed representative of Canadian values as a whole, then Canadians ought to care very deeply whether laws affecting Aboriginal peoples also represent a respect for human rights, gender equality and respect for Aboriginal culture. The Indian Act’s registration provisions were based on outdated, assimilatory goals and include a formula that ensures the eventual legislative extinction of Aboriginal peoples. Canada must take action to amend the Act in a meaningful, significant way that reflects our core values as Canadians, at least until something else replaces the Act. The current proposed amendment does not do this. By not amending the registration provisions in any significant way, we are allowing assimilation to continue. This lack of action not only violates basic human rights related to gender and identity, it also violates section 35 of the Constitution Act, 1982 which represents not only the highest law of the land, but a significant promise to Aboriginal peoples to protect their culture and identity for future generations. Canada accepts tens of thousands of new immigrants to this country every year, who draw upon Canada’s financial and other resources, yet Canada fought tooth and nail against Sharon McIvor for over 20 years to avoid having to register the descendents of Indian women. That does not represent a commitment to gender equity for Aboriginal peoples – it represents more of the assimilatory attitudes upon which this Act was originally based. We wouldn’t accept the reopening of residential schools – therefore Canadians should not stand for the continued assimilation of Aboriginal peoples through the registration provisions of the Indian Act. One can only hope that the joint process announced by Canada will address these urgent issues.

  • Amendments to the Indian Act's Registration (Status) Provisions

    The federal government appears to be pursuing a course of amendments to the Indian Act’s registration (status) provisions that will not address all of the gender discrimination raised by Sharon McIvor in her court case (McIvor v. Canada). It would seem that the Minister of Indian and Northern Affairs Canada (INAC, the honourable Chuck Strahl, is relying on the court of appeal’s obiter to significantly reduce the amount of gender discrimination it will fix. The problem is that this minimalist amendment which is being contemplated will have the same effect as the 1985 amendments to the Indian Act (also referred to as Bill C-31). Bill C-31 was supposed to bring the Indian Act into compliance with the Canadian Charter of Rights and Freedoms (Charter) and its section 15 equality provision. As INAC did not address all of the gender discrimination in the Bill C-31 amendments, McIvor and others had no choice but to try to address the residual (remaining) gender discrimination in court. Despite both the trial and appeal court agreeing that there is still gender discrimination in the registration provisions of the Indian Act; INAC plans only to address a limited portion of that discrimination. What is even more troubling about this situation is that INAC specifically decided NOT to conssult with Aboriginal peoples on this issue. To my mind, there can be no more important issue to Aboriginal peoples that the right to determine their own individual, communal and National identities. The Indian Act’s past and current registration formulas are restrictive and meant to eventually eliminate all status Indians and their communities in the future. I include communities because the majority of First Nations determine membership based on the Indian Act’s registration provisions. It is my opinion that Canada does not have the right to determine our legal, social, cultural or political identities and certainly does not have a right to limit our numbers or create a situation whereby we can all be legally extinct within several generations (for some communities). So, we as individuals and communities must not silently acquiesce to this situation. I agree that once a government has it in its mind to legislate in a certain manner, that it is very difficult to change their minds. However, it is not impossible and we as grass roots Aboriginal peoples have the power to stand up for ourselves in our own right and in partnership with our communities, organizations and Nations. When Mohawk lands were threatended in Quebec, the warriors showed up to defend them. When the Mi’kmaq treaty right to fish was threatended in New Brunswick, the warriors showed up to defend that right. Yet, when the future of our identities and communities are themselves at risk – where are the warriors? Our Aboriginal women and children are being unfairly excluded from their legal identities and their right to belong to their Nations. Where are the warriors to defend these women? One would not be entitled to call themselves a warrior in the past if they could not protect the women and children of their communities. Some of our leaders sometimes raise concerns about the lack of land and resources of their communities. They somehow associate this lack of wealth with an inability to include Aboriginal women and children as band members. Monetary gain may be attached to land and natural resources, and not to our women and children, but who we are as Mi’kmaq, Mohawk and Maliseet peoples is not based on how much money we have as individuals or communities. The many ways in which we are Cree or Ojibway have absolutely nothing to do with money. An Anishnabek’s identity and belonging in one’s community is a fact which is determined long before one know’s if they can access programs and services or live on a reserve. What some Aboriginal leaders are missing is that limiting the “pot” to a select few members does not address their lack of capacity in governance, their lack of access to lands and natural resources or their lack of power generally within Canada. A Nation is built, in part, upon its strength in numbers and the loyalty it receives from its citizens. Slowly reducing the number of members a band has is no different than the slow extinction of status Indians. Aboriginal Nations cannot improve their capacity and power within Canada without a solid citizenship base. All limited numbers does is ensure that this generation has access to bigger per capita pay-outs and quicker access to housing on reserve. Not everyone wants to live on a reserve – in fact, many Aboriginal peoples live off-reserve BUT in their traditional territories. Not everyone wants their identities recognized for the per capita pay-outs – some people want to protect their identities, those of their children and their heirs and heirs forver, because protecting their identities mean protecting the integrity of the Aboriginal communities from which they descend. There is a very simple math – an Aboriginal community can’t exist without its citizens and restrictive status or band membership codes means that Aboriginal peoples will continue to lose power and capacity instead of rebuild their once very powerful Nations. While there may be roadblocks to rebuilding our Nations and healing our people, it is up to us to take action and protect ourselves and our future generations. Despite the constitutional promise to Aboriginal peoples to protect our cultures and identities for future generations, I wouldn’t rely on Canada to keep its promise – would you? Take action – start talking – get your community or organization involved – our future generations are depending on it!