Legal Research

Draft Amendments to Indian Act Challenged

By Simon Fodden

The British Columbia Court of Appeal last year dealt with a complex matter of who is entitled to be registered as “an Indian” under the terrible Indian Act. In McIvor v. Canada (Registrar of Indian and Northern Affairs) 2009 BCCA 153 the issue, very narrowly put, was whether the plaintiff “should be entitled to transmit Indian status to his children, despite the fact that his father was non-Indian and his wife is non-Indian.” This is not the place to go into an analysis of the discriminatory aspects of the Indian Act (and I am not the person who might do it). But an overview of the matter is that the original Indian Act was grossly discriminatory against women; in 1985 amendments were introduced to make the Act comply with the Charter; they eliminated discrimination on the basis of gender prospectively, however, leaving invidious distinctions in place where they were based on events occurring prior to the 1985 amendments. As the Court put it:

[8] On its face, the current system makes no distinction on the basis of sex. From April 17, 1985 on, no person gains or loses Indian status by reason of marriage. A child of two Indians is an Indian. A child who has one Indian parent and one non-Indian parent is entitled to status unless the Indian parent also had a non-Indian parent. In sum, the current legislation does away with distinctions between men and women in terms of their rights to status upon marriage, and in terms of their rights to transmit status to their children and grandchildren.

[9] There is little doubt that the provisions of the Indian Act that existed prior to the 1985 amendments would have violated s. 15 of the Charter had they remained in effect after April 17, 1985. Equally, it is clear that if the current provisions had always been in existence, there could be no claim that the regime discriminates on the basis of sex. The difficulty lies in the transition between a regime that discriminated on the basis of sex and one that does not. [emphasis mine]

The plaintiff’s claim is one based on the argument that to use the old, discriminatory regime as the starting point for analysis is a violation of his Charter rights. The Court agreed, but with carefully narrowed reasons and gave the government a year to amend s.6 of the Indian Act, the source of the difficulty at issue.

Bill C-3, which aims to comply, has now come out of committee and is headed for third reading. While in committee it was amended to broaden the scope of the corrective provisions to address gender-based inequalities other than those immediately relevant in the McIvor case. In the House, however, the Speaker ruled in favour of a government motion that the amendments went beyond the scope of the legislation and they were removed from the bill.

Now there’s a lobbying effort by various groups to have the Bill amended by the House or withdrawn in favour of a more expansive piece of legislation. LEAF (Women’s Legal Education and Action Fund) is among the group seeking broader change. They’ve written a letter [PDF] to all MPs outlining some of the discriminatory effects of the Indian Act left unremedied by the Bill. The question they’d put before the House is whether the Indian Act should continue to be amended piecemeal or whether a more thorough modernizing is appropriate.

Full post as published by Slaw.ca on May 20, 2010 (boomark / email).