Despite its name, however, Bill S-3 does not eliminate all sex-based inequalities in registration under the act. Rather, it is limited to addressing the sex-based discrimination identified in Descheneaux v. Canada. Thus, Bill S-3 continues the Canadian government’s approach to eliminating sex-based discrimination under the act in registration under the act in a piecemeal fashion.
Bill S-3 introduces amendments to s. 6 of the act. Section 6 governs entitlement to registration as an Indian. While registration acts as a means to access a number of benefits, both material and intangible, the B.C. Court of Appeal recognized in McIvor v. Canada that the ability to pass Indian status to one’s child is also a significant benefit. Further, the exclusion from Indian status can also mean physical exclusion from an indigenous community’s culture and resources.
Throughout the history of the Indian Act, the provisions governing entitlement to and transmission of Indian status have favoured men and discriminated against indigenous women. Beginning in 1869, indigenous women who married non-indigenous men lost their status and entitlement to all benefits of status, including the ability to pass status on to their children. However, if an indigenous man married a non-indigenous woman, he not only preserved his status but he was able to confer that status on his spouse and children.
The only restriction on a registered indigenous man to pass status on to his children was the “Double Mother rule” instituted in 1951. Under this rule, a child would lose Indian status at age 21 if they had: 1) an indigenous father whose mother gained status through marriage, and 2) a mother who gained status through marriage.
In 1985, Parliament amended the registration provisions in the act to ensure compliance with s. 15 of the Charter. The intent was to remove restrictions relating to marriage and remove any sex-based discrimination. However, the result was to create a two-tiered system of status that continued to unfairly discriminate against indigenous women and their descendants.
This continued discrimination was first successfully challenged in McIvor, which resulted in amendments to the act in 2010. However, the 2010 amendments did not eliminate all the sex-based discrimination in registration, which led to the successful challenge in Descheneaux.
Both McIvor and Descheneaux involved challenges to the two-tiered status set out in s. 6. Despite being enacted for the express purpose of eliminating sex-based discrimination, s. 6 continued to discriminate against indigenous women and their descendants by limiting their ability to pass on Indian status, as compared to indigenous men and their descendants.
Bill S-10 is Canada’s official response to Descheneaux and purports to eliminate all sex-based discrimination in registration under the act. In Descheneaux, the court found the act continued to perpetuate differential treatment based on sex. The differential treatment resulted in an unequal ability to pass on Indian status, depending upon whether a person was descended from a male or female grandparent or parent with status.
Unfortunately, while Bill S-3 eliminates the discrimination identified in Descheneaux, it does not eliminate all sex-based discrimination in registration. As a result, indigenous women are forced to continue their fight in the courts. One of these cases, Gehl v. Canada, will be heard by the Ontario Court of Appeal on Dec. 20. Gehl challenges the sex discrimination in the act with respect to registration where there is unknown and unstated paternity.
In Gehl, the challenge involves the registration provision and the government’s Proof of Paternity Policy, which sets out the evidentiary requirements for proving a child’s paternity. The claim is that the act and the policy impose a burden on registered indigenous women only, and also prevent many from passing on their Indian status to their children and grandchildren.
Of importance to this case is the two-tiered status created by s. 6. Section 6(1) status or “full” status is available to those with two parents entitled to be registered and allows Indian status to be passed on to their children regardless of the status of the other parent. Where only one parent is entitled to be registered, a lesser form of status is granted under s. 6(2), which status cannot be passed on to a child unless the child’s other parent has status. This is known as the “second-generation cut-off.”
The policy guides the application of the second generation cut-off. For paternity, if a mother is unable or effectively unable to prove the Indian status of the father of her child, the policy provides the mother’s status alone will be relied upon to register the child, which means the father is presumed to be non-indigenous. The result is that if the mother has s. 6(1) status, her child will only be entitled to s. 6(2) status. If she is registered under s. 6(2), her child will have no status.
In Lynn Gehl’s case, despite having five continuous generations of indigenous ancestry, she was denied registration as an Indian under the act because her grandmother did not identify her grandfather. Under the policy, he is assumed to be non-indigenous, so Gehl’s father was only entitled to s. 6(2) registration.
The result was that he could not pass status to his children, and Dr. Gehl was denied registration under the Act.
At the Ontario Superior Court of Justice, the court in Gehl found no violation of s. 15 of the Charter because “unknowable paternity is not an analogous ground” and the “impugned provisions . . . treat all applicants the same.” In doing so, the court failed to recognize the inevitable relationship between unstated or unknown paternity and sex, and engaged in a formal approach to equality analysis instead of a substantive one. This analysis ignores the very real fact that those who are unable or effectively unable to identify the other parent of a child for the purpose of registration are exclusively indigenous women. It also has a disproportionate effect on unmarried indigenous women, who are more likely to be unable or effectively unable to establish the paternity of their children.
The result is that indigenous women and their descendants continue to be denied equal benefit of the law. The differential treatment they experience is the same identified in McIvor and Descheneaux. Only children and grandchildren of indigenous women are adversely impacted by the policy.
The legacy of the sex-based discrimination in the act is to leave multiple generations of indigenous people — primarily women, their children and grandchildren — disenfranchised from their communities. Previous Parliamentary committees heard testimony about the consequences of the sex discrimination perpetuated by the act, which include exclusion, loss of cultural connection and erosion of identity and sense of self-worth. Given the government of Canada’s stated intent to eliminate all sex-based inequities in the act through Bill S-3, it is necessary to revise the current amendments to ensure sex-based discrimination is eliminated from the registration provisions of the act once and for all.
Alison Gray is a partner in the litigation department of Bennett Jones LLP in Calgary and is a member of the Legal Program Committee of LEAF.