Any Tuesday …

On January 11, 2019, the United Nations Human Rights Committee issued its decision on the petition of Sharon McIvor. Sharon McIvor claimed that the Indian Act continues to discriminate against First Nations women and their descendants by denying them full s. 6(1)(a) status on the same footing as their male counterparts. This discrimination is old, dating to the introduction of the Indian Act in 1876 when an “Indian” was defined as “a male Indian, the child of a male Indian, or the wife of a male Indian”. There was a one-parent rule for transmission of status, and the one parent was male. First Nations women who married “out” lost their status and could not transmit status to their children.  By contrast, First Nations men who married “out” conferred their status on their wives and on their children.

Amendments to this discriminatory regime in 1985, 2011, and 2017, removed some slivers of the discrimination, but left the core of the sex discrimination intact. The 1985 amendment restored status to First Nations women who lost it by marrying out, and to matrilineal descendants who never had status because their First Nations ancestor was an unmarried woman. But these women and matrilineal descendants were reinstated to a second-class status, 6(1)(c), with less entitlement to transmit status than their male counterparts and patrilineal descendants, who had never lost status and were assigned full 6(1)(a) status. Further amendments in 2011 and 2017 did not dismantle this sex-based hierarchy.

The UN Human Rights Committee held that the sex-based hierarchy between 6(1)(a) and  6(1)(c), introduced by the 1985 Indian Act, and continued by the amendments of 2011 and 2017, violates the right to the equal protection of the law without discrimination based on sex, and violates the equal right of men and women to the enjoyment of  Indigenous culture, guaranteed by the International Covenant on Civil and Political Rights.

The damage that this discrimination has done to First Nations women, their children, and their communities, over decades, is profound. As Joyce Green has written, “From this sexist law flowed a host of negative consequences that have been well documented, including loss of identity, of family proximity, of cultural and political participation, and of access to the meagre services provided through Indian Affairs … Because they were not recognized as 'Indians' many First Nations women and children were exiled to unwelcoming settler communities infused with racism, where they were, ironically, forever marked as ‘Indian'” (“Federal government must put an end to Indigenous sex discrimination”, Regina Leader-Post, Jan. 25, 2019).

As we watch the decades of fall-out, it is not surprising that the Canadian Human Rights Tribunal in its February 21, 2019 decision in the First Nations Family and Child Caring Society case, decided to hold a full hearing on the issue of who is a “First Nations child” for the purposes of implementing Jordan's Principle, and has asked parties to comment on the UN Human Rights Committee's ruling on Sharon McIvor's petition. As the Tribunal notes, some of the First Nations children who are apparently being denied services because they do not have Indian status, may not have status because of the ongoing sex discrimination in the Indian Act.

Nor is it surprising that both the United Nations CEDAW Committee and the Inter-American Commission on Human Rights, in their investigations into the crisis of murders and disappearances of Indigenous women and girls in Canada, found that Indian Act sex discrimination is a root cause of the violence. More than a century of being treated as second class human beings, in law, has generated violence and abuse of First Nations women and girls, both in their own communities and in the broader society.

First Nations women and their descendants have repeatedly challenged this discriminatory treatment. Since the 1970s they have used every legal tool available to them: The Bill of Rights (Lavell; Bedard), statutory human rights law (Matson, CHRR Doc. 18-3035), Charter rights (McIvor, Descheneaux, Gehl) and the United Nations petition system (Lovelace, McIvor, Matson). And, mostly, they have won.

And, repeatedly, Canada has refused to eliminate the core of the discrimination. Each time, it has removed only the particular aspect of discrimination that is made manifest by the latest plaintiffs, but never the fundamental hierarchy. As a result, First Nations women have been forced to spend decades trying to litigate their way to full equality, one family tree at a time.

In the last episode, when in 2017 the Government of Canada amended the Indian Act to respond to the Quebec Superior Court's decision in Descheneaux, the Senate of Canada put up a fight, led by Indigenous Senators, Lillian Dyck and Sandra Lovelace-Nicholas (yes, the same Sandra Lovelace). And, faced with not being able to pass their narrow amendment, the Government agreed to include provisions in Bill S-3 that would have the effect of removing the 6(1)(a) to 6(1)(c) hierarchy finally and completely, but they did not bring these provisions into force. Cabinet can bring them into force by Order in Council, but, to date, has chosen not to do so.

The UN Human Rights Committee took note of the fact that Bill S-3 contains provisions that would cure the discrimination, but since those provisions are not in force, it found that the Indian Act, as amended by Bill S-3, maintains a discriminatory distinction based on sex. The Committee also noted that Canada clearly agrees that the Indian Act is still discriminatory, knows how to fix it, and has not.

So, what can explain the years of refusal by the Government of Canada to implement, for First Nations women, the right to equal protection of the law that it has embraced since the 1970s?

There is no nice answer. The dark and simple answer seems to be that the Government of Canada does not want more “Indians”. Sex discrimination has been an effective tool of assimilation since 1876, defining 'Indians' out of existence through discriminatory treatment of matrilineal descent, and of Indian women, but not Indian men, who “married out”. The sex discrimination has been used to keep small the pool of First Nations people to whom the Government of Canada owes a fiduciary duty, and whose treaty and inherent rights it must recognize.

On December 5, 2017 the Parliamentary Budget Officer released a report estimating that there are 270,000 women and their descendants who would register newly for Indian status if the 6(1)(a) to 6(1)(c) hierarchy was eliminated. That's how effective sex discrimination is; it keeps out 270,000 First Nations women and their descendants.

Cabinet meetings take place on Tuesdays. Because all that is needed is an Order in Council, this means that any Tuesday, Cabinet could eliminate the sex discrimination against First Nations women and their descendants that has been on the law books for almost one and 50 years. It's time.


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