Bill C-3 was introduced by the Conservatives on March 11, 2010, ostensibly to “fix” the sex discrimination in the status registration provisions of the Indian Act pursuant to the BC Court of Appeal decision in the November 2009 McIvor case, which held that the status provisions of the Indian Act violate the equality guarantees of the Charter. Bill C-3 passed second reading on March 29, and is currently before the Committee on Aboriginal Affairs and Northern Development. If it is passed, Canada will continue to discriminate against Aboriginal women in legislation.
This issue has a long history. Since the 1800s the racist, sexist Indian Act defined “status” Indians, thus identifying those who could (and at one time, must) live on reserves and who were subject to the Indian Act, and eligible for the meager programs made available by the federal government. The Indian Act defined an Indian as “a male Indian, the wife of a male Indian or the child of a male Indian” as per the practices of colonial patriarchy. Thus, Indian women who married “out” were stripped of their status and could not confer it to their children, while Indian men who married “out” or “in” gave their status and band membership to their wives and children and thus to their grandchildren.
Jeanette Corbiere Lavell and Yvonne Bedard challenged section 12(1)(b) of the Indian Act as violating the 1960 Canadian Bill of Rights guarantee of sex equality. They lost at the Supreme Court of Canada in 1973, in a ruling that held that equal discrimination against all Indian women amounted to equality under the law. Sandra Lovelace subsequently successfully challenged Canada and s.12(1)(b) for violating the International Covenant on Civil and Political Rights; the UN Human Rights Committee found the status provisions deprived women and their children of the fundamental right to enjoy culture in their communities. In 1982 the new Charter of Rights guaranteed equality rights, deferred to 1985, which is when the Mulroney Conservative government moved to amend the status provisions of the Indian Act with Bill C-31.
The fix was incomplete. Bill C-31 continued the full Indian status of those already recognized in s.6(1)(a), but reinstated women and children who had lost status because of sex discrimination to a second-class status category, 6(1)(c). The difference is in the future: Indians who never lost status confer status to their children and grandchildren, while reinstated Indians have a diminished status that they can confer to their children, but not to their grandchildren.
Arguing the equality guarantee of section 15 of the Charter, Sharon McIvor challenged the continuing sex discrimination that gives preferred Indian status to men who married “out” as compared to women who married “out”, and to descendants of male Indians as compared to those descended from female Indians. McIvor won in the B.C. Supreme Court and in the B.C. Court of Appeal in 2007 and 2009. As a result, the federal government has to, once more, amend the Indian Act.
But Bill C-3 is not the solution. It would continue to discriminate by conferring a weaker form of “status” on reinstatees. Although the Conservatives say that it will provide access to Indian status to 45,000 descendants of previously ineligible Aboriginal women, it will not give them equal status. Descendants of reinstated women will still have less ability to transmit their status than the descendants of men. The legislated inability of one Indian parent to transmit status, known as the second generation cut-off, will apply to these women’s descendants one generation earlier than to male lineage descendants.
In addition, Bill C-3 will leave out some Aboriginal women and their descendants for no other reason than sex discrimination. For example, grandchildren who trace their Aboriginal descent through the maternal line will continue to be denied status if they were born prior to September 4, 1951 while grandchildren who trace their Aboriginal descent through the male line will not. Bill C-3 continues to exclude grandchildren descended from status Indian women who co-parented with non-status men in common law unions. Grandchildren of status Indian fathers who co-parented with non-Indian women are not excluded from registration status.
The Conservatives have offered to conduct broad consultations with bands and Aboriginal organizations following passage of Bill C-3. Consultation by governments with Aboriginal peoples on self-government, land claims, environmental law, resources, and child welfare is urgently needed. But consultation and the urgent Aboriginal policy agenda must not obscure the need to eliminate sex discrimination from the Indian Act.
The Indian Act violates Charter equality guarantees and several pieces of international law to which Canada is signatory. It also violates the 2009 UN Declaration of the Rights of Indigenous Peoples, the new international standard for indigenous rights, guaranteed equally to men and women.
It took McIvor twenty years to take her case to the B.C.C.A. Surely Aboriginal women and their descendants are entitled to equality under Canadian law now. Bill C-3 should end sex discrimination in the Indian Act, once and for all.
Shelagh Day, Chair, Human Rights Committee, Canadian Feminist Alliance for International Action; and Joyce Green, Political Science, University of Regina