UPDATE: Canada’s federal government has brought the outstanding provisions of Bill S-3 into force, as of Aug. 15, 2019. This means the long standing sex discrimination in the Indian Act is finally resolved.
Thanks to the efforts of Sharon McIvor and her legal team of Gwen Brodsky and Shelagh Day, Indigenous women and their descendants across the country are now awaiting the federal government’s next move, following a Jan. 14 United Nations Human Rights (UNHR) committee ruling that Canada must end its current discrimination in the Indian Act against First Nation women and their descendants.
“If Canada follows through as it’s supposed to do, as it’s committed, it’s a game changer for a lot of women and their descendants,” said McIvor, 70, a lawyer from Merritt, British Columbia, who filed the petition to the UNHR, along with her son, Jacob Grismer, 47, in 2010, after exhausting her efforts to receive full Indian status through Canadian courts.
“I’m very excited . . . that we did get this decision,” she said at a Jan. 17 press conference in Vancouver. “It’s my birthright. I should have had it from the time I was born.”
“This is a very significant remedy and one that requires immediate action,” added Gwen Brodsky,” McIvor’s long-time lawyer.
McIvor’s thoughts are that the intangible benefits are, to her and her family, more important than the education and medical funding. “The intangible benefit for us is, actually, that recognition (as status Indians) goes to the heart of our identity,” she said.
Shelagh Day, Chair, Human Rights Committee, Canadian Feminist Alliance for International Action, called the ruling “ground-breaking”, and said in a press release, “This sex discrimination has been in the law in Canada for more than one hundred years. It has had a profoundly damaging effect.”
The ruling by the United Nations International Covenant on Civil and Political Rights said Canada continues to discriminate against First Nations women and their descendants born before 1985 by denying them the same entitlement as First Nations men and their descendants born before 1985.
In essence, men and their descendants born before 1985 were grandfathered in as 6(1)(a) status registration, but the women who were reinstated in 1985 were only registered as 6(1)(c) status, where then their descendants born before 1985 were impacted sooner by the second generation cut-off rule. For men, the second generation cut-off rule only applies to births after 1985. (See this link for information on the second generation cut off rule: https://www.lynngehl.com/black-face-blogging/understanding-61a-all-the-way)
The committee ruled that Canada must remove the sex discrimination inherent in the 6(1)(a) and 6(1)(c) hierarchy, and it has 180 days, meaning mid-July, to report on how it plans to do so.
McIvor’s situation is a text book example of this continued sex discrimination. Under the present Indian Act, McIvor is only eligible for the weaker 6(1)(c) status and thus can only transmit partial status to her son and his descendants. Yet her brother is eligible for full 6(1)(a) registration status, and can transmit full status to his children and grandchildren born before 1985. This difference is based solely on sex, said the UNHR written decision.
In December 2017, the Canadian Parliamentary Budget Officer estimated there are more than 270,000 women and their descendants who would be newly entitled to Indian status if 6(1)(a) were granted to women in Sharon McIvor’s situation.
McIvor pointed out that Canada has fought hard in resisting changes to the Indian Act. In December 2017, it initiated a “second stage consultation” process with First Nations across the country to discuss the Indian Act — a continuation of on-going consultation that has been happening since 1985, she said. The government says it will present the latest results to Parliament by mid-June.
McIvor said during the press conference that her journey to obtaining 6(1)(a) status began in 1989 through the Canadian court system. It was in 2007 that the British Columbia Supreme Court recommended all sex discrimination in the Indian Act be addressed. Canada appealed this decision, and the B.C. Court of Appeal narrowed the remedy. The Supreme Court of Canada would not hear the case because, according to it, McIvor won. As a result, she was forced to go to the United Nations.
In discussing the length of her effort, McIvor said from 1989 to 2006 a Department of Justice lawyer’s only job was to make sure her case did not get into court, by repeatedly asking for adjournments.
“The government, throughout, has said they have to consult with First Nations to see how it would impact on them,” she further added. “But you can’t give permission to discriminate. Our law says no discrimination.”
Even with McIvor’s UNHR petition, Canada prolonged the process by stalling. It was filed in 2010 and since then, Canada has kept defending itself, while at the same time saying it was working on amending the Indian Act to make it non-discriminatory, she said.
Lynn Gehl, an Algonquin Anishinaabe-kwe who lives in Nogojiwanong/Peterborough, Ontario, and also fought sex discrimination in the Indian Act for over 30 years on the matter of unknown and unstated paternity, agrees with McIvor, saying the UNHR committee decision is a victory. Gehl is also the creator of the “6(1)(a) All The Way” slogan which even Canada’s senators have fist-pumped when voting in meetings.
“Canada has been refusing to address this sex discrimination,” Gehl said, in an interview, asking, “What reason does Canada have to not align the Indian Act with the 1982 Charter of Rights and Freedoms? It doesn’t make sense.”
“I think it has to do with Canada’s need to eliminate Indians,” she said. “They have been using sex discrimination all this time, but now Canada has been caught with their corrupt ways and lies.”
“Let’s keep in mind that in 2017 Canada’s so-called feminist Liberal government and all its Members of Parliament voted for a version of Bill S-3 that contained sex discrimination,” Gehl continued. “This includes Maryam Monsef, Minister for Women and Gender Equality. This is shameful. They were all aware of it, but the deceptive and manipulative position of further delay was that a second stage consultation process was the way to address the issue. Canada can do better, and must do better.” (https://www.youtube.com/watch?v=blrWTl7F6tI&t=19s)
“Let’s be clear. A right is a right, and you do not consult on a right,” said Gehl.
Mary Eberts, Toronto-based constitutional lawyer and advocate for Charter rights for her clients, says, “It was envisioned right from the start of the Charter that Parliament, in passing laws, would comply with the Charter. It would act proactively and its compliance with the Charter was not going to be limited to circumstances where the court said something was contrary to the Charter and the legislature merely fixed up the problems.” (https://www.youtube.com/watch?v=lauRGg7bddY)
Note: The United Nations International Covenant on Civil and Political Rights(ICCPR), which ruled on the McIvor decision, is a multi-lateral treaty adopted by the United Nations General Assembly, which attempts to ensure the protection of civil and political rights. It came into force in 1976 and was ratified that year by Canada . The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of August 2017, the Covenant has 172 parties and six more signatories without ratification.
By Melodie McCullough