By Melodie McCullough
(For an update on Bill S-3 see: https://www.change.org/p/canadian-government-remove-all-of-the-sex-discrimination-in-the-indian-status-registration-provisions-of-the-indian-act-enough-is-enough/u/20879596?)
After 32 years of fighting the Canadian government over sex-discrimination in the Indian Act — and an Ontario Court of Appeal decision in her favour in April — Dr. Lynn Gehl, a Nogojiwanong/Peterborough, Ontario, resident, says there is still more work to be done.
Bill S-3, an Act to amend the Indian Act, is now before the House of Commons to amend legislation to eliminate sex-based inequities in Indian registration — which the government says it won’t support. Gehl is right in the thick of things battling any and all discrimination with her rallying call of “6(1)(a) All the Way”.
While Gehl’s court decision said she is entitled to a 6(2) Indian status designation, she feels she should be registered as 6(1)(a).
. . . the “6(1)(a) All the Way” clause . . . would create equality between Indian women and their descendants and Indian men and their descendants, born prior to April 17, 1985.
Gehl is an Algonquin Anishinaabe-kwe and an advocate and writer for Indigenous women, men, children, and the land. In April, Ontario’s Court of Appeal ruled she should be granted Indian status. The Canadian federal government had fought her on this for decades, based on the issue of unknown and unstated paternity, because she didn’t know who her paternal grandfather was.
In a related case, in August, 2015, Quebec Superior Court Justice Chantal Masse found that several provisions in the Indian Act discriminate against the descendants of First Nations women, making it more difficult for them to pass Indian status on to their descendants, thus violating the Canadian Charter of Rights and Freedoms. The federal government was ordered by the court to make all necessary changes by July 3, 2017. The result is the government’s Bill S-3, introduced last October.
The Senate passed an amended Bill S-3 on May 17, adding several clauses which would eliminate any remaining sex discrimination. This includes two clauses directly related to the Gehl case, regarding unstated paternity, and the “6(1)(a) All the Way” clause, which would create equality between Indian women and their descendants and Indian men and their descendants, born prior to April 17, 1985.
The Bill has moved through one reading in the House of Commons on June 2 and must move through two more, where Gehl hopes all the clauses remain intact, in particular “6(1)(a) All the Way”.
Gehl has traveled to Ottawa twice to make her views known. She first testified to the Senate Standing Committee on Aboriginal Peoples on May 16 and then to the House of Commons Standing Committee on Indigenous and Northern Affairs (INAC) June 8. She is clear that the “6(1)(a) All the Way” clause would serve to eliminate yet another sex-discrimination imposed on her where she is not seen as equal to other descendants born before 1985.
While Indigenous Affairs Minister Carolyn Bennett has said her government will support the two “Gehl clauses”, she said it will not support the “6(1)(a) All the Way” clause. She also argued that the number who would receive Indian status and the accompanying treaty rights, if she supports 6(1)(a) could be as many as two million – a number some see as “fear-mongering”. That numerical range was later clarified by a department official as being between 80,000 and two million.
“We need to keep in mind that there were fewer than 700,000 status Indians in Canada at the time of the last census in 2011,” says Gehl.
Bennett has stated the government is willing to do what the court told it to do to comply with the Charter of Rights and Freedoms, that is remove some discrimination, but not all, advocating she wants the legislation to pass by the July 3 deadline, without the “6(1)(a) All the Way” clause. She claims she will then do more research and consultation on any remaining discrimination.
First Nations men who married non-status women before April 17, 1985 – when the act was amended to comply with the Charter – pass 6(1)(a) status to their grandchildren and in many cases to their great-grandchildren, if they are born before 1985. This is the case even if their children and grandchildren have children with non-Indians. But, First Nations women who married non-status men before 1985 only pass 6(2) status on to their grandchildren.
“While the Indian Act was amended in 1985 to eliminate the sex discrimination against women who married non-Indian men, Canada took advantage of this remedial process creating the second-generation cut-off rule,” says Gehl, “and applied this rule in a detrimental way to the descendants of Indian women, as compared to the descendants of Indian men.”
Gehl says the “6(1)(a) All the Way” amendment — a phrase she birthed in 2010 — is the solution, giving equal Indian status registration to descendants of Indian men and women.
In a press release from Aboriginal Legal Services Toronto (ALST) following her court decision, it says Gehl first began her journey to be registered as an Indian in 1985. In 1995, INAC denied her application and ALST started the court appeal process. Prior to the Gehl Court of Appeal decision, INAC’s Proof of Paternity Policy said that if the father’s signature was not listed on the birth certificate, he was assumed to be non-Indian.
“I don’t agree that I should be a 6(2),” says Gehl. “I think I should be a 6(1)(a). The comparative group would be the great-grandmothers and the grandmothers who were never enfranchised because they married Indian men. They, and their descendants, are 6(1)(a)s, and I think I should also be that because I was born before 1985. I am the great-grandchild and grandchild of enfranchised Indian women and I too should be registered as 6(1).”
And while her court case gave her Indian status, she remains concerned about other women and girls who cannot prove their child’s father is Indian due to issues of sexual violence.
“There are some disturbing statistics we should consider … Indigenous women and girls, with disabilities or without, are bigger targets of sexual violence. They are more vulnerable and more likely to have a child of unknown or unstated paternity.”
“In my Senate testimony, I was clear in my call for the need to protect Indigenous women and Indigenous girls who become pregnant through sexual violence such as rape, including statutory rape, gang rape, and sexual slavery where there would be no evidence who the biological “father” is,” she says.
“There are some disturbing statistics we should consider,” she said in her Senate address. “Through reason, it becomes clear that Indigenous women and girls, with disabilities or without, are bigger targets of sexual violence. They are more vulnerable and more likely to have a child of unknown or unstated paternity. For example, 83 per cent of women with disabilities or developmental disabilities have been victims of sexual assault, and 84 per cent of homeless Indigenous girls have been sexually abused. These are statistics that we need to pay attention to.”
“Indigenous mothers and their children should not suffer because they lack evidence that this man may be an Indian,” she continued. “In all situations of sexual violence Indigenous children born to Indigenous mothers and Indigenous girls must be registered with the same Indian status as the mother: That being either section 6(1) or 6(2) status.”
“INAC are government bureaucrats who seek the eliminate Indians at all costs,” she told the Senate committee. “They are not concerned with understanding that many Indigenous women and girls will not report rape to the police. For valid reasons, Indigenous women and girls don’t trust the police.”
“We need to place parameters around the clauses and terms as a measure to make sure Indigenous women and girls do not face unreasonable barrier,” Gehl said. “Otherwise, INAC and Department of Justice will develop unreasonable criteria of evidence, such as the requirement of police reports, rape kits, social workers’ and therapists’ reports, and photographs of bruising and tears in the vagina.”
Gehl said she will continue her work to ensure that Indigenous mothers and children are not excluded from registration due to an unknown or unstated paternity, especially in situations of sexual violence and an abuse of power.
Bill S-3: https://lop.parl.ca/About/Parliament/LegislativeSummaries/bills_ls.asp? source=library_prb&ls=S3&Parl=42&Ses=1&Language=E
Lynn Gehl Continues 30-year Fight for First Nations Status