The Ontario Court of Appeal has granted the Women’s Legal Education and Action Fund (LEAF) leave to intervene in Lynn Gehl’s case challenging sex discrimination in the Indian Act, after LEAF filed a factum Sept. 23 in Gehl v Attorney General of Canada.
Gehl, PhD, who lives in Peterborough, Ontario, has been fighting for First Nation Indian status for 30 years, and, although she lost a major court decision 18 months ago, she and her lawyers are still pursuing the case. The appeal court date is set for December 20, 2016.
It its factum*, LEAF states the following:
“Dr. Lynn Gehl is an Algonquin-Anishinaabe woman with more than five continuous generations of Indigenous ancestry. She seeks registration as an “Indian” under the registration system in the Indian Act, colloquially referred to as “Indian status”. Aboriginal Affairs and Northern Development Canada (AANDC, now Indigenous and Northern Affairs Canada) denied her registration application in 1994. The AANDC Registrar determined that Dr. Gehl does not qualify for Indian status because her grandmother did not identify Dr. Gehl’s grandfather. Pursuant to AANDC’s Proof of Paternity Policy, if the father is not listed on the birth certificate, he is assumed to be non-Indian.
A policy that makes a distinction based on “unstated paternity” necessarily discriminates on the basis of sex.
“Indian status” in Canada provides access to material benefits such as tax exemptions and financial assistance with post-secondary education. Intangible benefits include cultural connection and recognition. Status is valuable, but there are many reasons why an Indigenous woman would not register her child’s biological father. For example, a father may not be present at birth if the reserve is remote and access to hospitals is difficult, the family may lack the funds to alter a child’s birth certificate, a father may deny paternity as a result of social pressures and incentives, or a mother may choose not to disclose the father’s identity due to sexual violence, such as incest and rape.
LEAF Legal Director, Dr. Kim Stanton notes:
Indigenous women are disproportionately targeted for sexual violence and they are disproportionately single parents living in poverty. An Indigenous mother should not be forced to choose between ensuring her child’s status (and the ensuing benefits) and a heightened risk of physical harm or social conflicts.
LEAF asserts that the parent who will be disadvantaged by this policy will inevitably be a woman, since it is men rather than women who are unstated on birth certificates. A policy that makes a distinction based on “unstated paternity” necessarily discriminates on the basis of sex.”
*The word factum is used in law to refer to a litigant’s written submissions, a core booklet of clear, simple and concise argument. It is most often used in the content of an appeal but may also be used to refer to written submissions given to a lower court, of first instance.