On January 14, 2019, the United Nations Human Rights Committee (the “UNHRC”) released its decision which held that sex-based discrimination continues under the Indian Act, contravening the Optional Protocol to the International Covenant on Civil and Political Rights (the “Covenant”).
In 2010, Sharon McIvor and her son, Jacob Grismer, brought a human rights complaint to the UNHRC, arguing that section 6 of the Indian Act violates their rights under the Covenant. The UNHRC agreed, ruling that the Indian Act discriminates on the basis of sex, in contravention of Articles 3 and 26, read in conjunction with Article 27 of the Covenant.
Sex-based discrimination in the Indian Act
There is a long history of sex-based discrimination in the Indian Act. Prior to 1985, an “Indian” was defined as any male person of Indian blood, including the children and lawfully wedded wives of such persons. As a result of this provision, only male status Indians could transmit Indian status, be it through marriage or parentage. In contrast, Indian women had little ability to transfer Indian status to their descendants.
Further, thanks to this definition of “Indian,” women lost their Indian status if they chose to marry a non-Indian man. In contrast, non-Indian women who married an Indian man acquired status by virtue of their marriages.
In 1985, amendments arrived in the form of Bill C-31, An Act to Amend the Indian Act (“Bill C-31”), which introduced several criteria for obtaining Indian status.
Notably, paragraph 6(1)(a) preserved Indian status for all who had an entitlement prior to April 17, 1985. Paragraph 6(1)(c) extended Indian status to Indian women who had previously been denied status, or had lost their status, due to marriage to a non-Indian man.
Bill C-31 introduced a second generation cut-off. Persons who are the products of two successive unions of Indians and non-Indians are not entitled to Indian status. Upon amendments made to the Indian Act in 1985, this second generation cut-off did not immediately apply to individuals holding section 6(1)(a) status if born prior to April 17, 1985, as any person entitled to be registered prior to that date retained their status.
In contrast, the second generation cut-off applied immediately to women possessing section 6(1)(c) status. These women were able to pass status onto their children through subsection 6(2) of the Indian Act, but were unable to pass status on to their grandchildren, even if born prior to April 17, 1985.
Amendments were introduced to the Indian Act in 2011 in the form of Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs (“Bill C-3”).
Bill C-3 attempted to ameliorate the sex-based discrimination caused by the differences in how the second generation cut-off was applied between those claiming status through male or female lineage. Paragraph 6(1)(c.1) extended status to children of mothers who claimed their status under paragraph 6(1)(c), provided they were born prior to April 17, 1985.
Yet additional amendments came in 2017 in the form of Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur general) (“Bill S-3”).
These amendments were made in response to the decision of the Quebec Superior Court in Descheneaux v. Canada (Procureur General), 2015 QCCS 3555 (“Descheneaux”), declaring paragraphs 6(1)(a), (c) and (f), and subsection 6(2) of the Indian Act inoperative.
To date, the Indian Act continues to exclude matrilineal descendants born prior to 1951, while patrilineal descendants experience no such exclusion. This is known as the “1951 cut-off.”
Further, the different paths to status under paragraphs 6(1)(a) and 6(1)(c) and subsection 6(2) of the Indian Act have contributed to perceptions that those deriving status under paragraph 6(1)(a) are more “Indian,” while those deriving status under paragraph 6(1)(c) or subsection 6(2) are not “Indian” enough. Such perceptions have contributed to discrimination and cultural exclusion within Indigenous communities.
Significantly, the Government of Canada introduced amendments contained in s. 2.1, 3.1, 3.2 and 10.1 of Bill S-3 which would eliminate paragraph 6(1)(c) of the Indian Act, as well as all of its subcategories, causing individuals previously entitled to status under these subsections to be re-categorized under s. 6(1)(a.1) to (a.3).
These provisions would eliminate the 1951 cut-off, and would combat discrimination experienced as a result of status derived under paragraph 6(1)(c) being perceived as lesser than status derived under paragraph 6(1)(a).
However, the amendments contained in s. 2.1, 3.1, 3.2 and 10.1 of Bill S-3 have not come into force, and will not come into force until an unspecified date to be set by Order in Council. According to the Government of Canada, such date is pending while the Government undergoes consultations with First Nations.
The UNHRC Decision
Equal treatment of men and women is mandated in Articles 2(1), 3 and 26 of the Covenant. Article 27 of the Covenant provides for the right to enjoy one’s own culture, including the right to practice one’s own religion and use one’s own language.
The UNHRC said that, notwithstanding amendments made to the Indian Act in 1985, 2011 and 2017, the Indian Act continues to make distinctions on the basis of sex. Sharon McIvor is treated differently than her identically situated brother under the Indian Act. While he derives status under paragraph 6(1)(a), she derives hers under paragraph 6(1)(c).
This affects the conditions for transmitting status to one’s descendants. Such distinctions may also contribute to stigmatization, and may affect one’s way of life within the community.
The UNHRC concluded that continuing discrimination on the basis of sex as contained in subsection 6(1) of the Indian Act constitutes prohibited discrimination under the Covenant. This distinction has affected Sharon McIvor’s and Jacob Grismer’s right to enjoy their culture and this is a violation of Articles 3 and 26, read in conjunction with Article 27 of the Covenant.
Pursuant to Article 2(3)(a) of the Covenant, the Government of Canada is required to provide Sharon McIvor and Jacob Grismer with an effective remedy.
The Government is required to make full reparation to all individuals whose Covenant rights have been violated.
Specifically, the Government must:
- Ensure that paragraph 6(1)(a) of the Indian Act is interpreted to allow registration by all persons who were previously not entitled registration under paragraph 6(1)(a) solely on the basis of sex;
- Address residual discrimination within First Nations communities arising from legal discrimination on the basis of sex as contained in the Indian Act; and
- Take steps to avoid similar violations in the future.
The UNHRC gave the Government 180 days to provide information regarding measures taken to fulfil the above requirements.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.