The Never-Ending Sex Discrimination in the Indian Act

The Supreme Court of Canada just closed another door on avenues to deal with the never-ending sex discrimination in the Indian Act. It ruled in Canada (Human Rights Comm.) and Matson v. Canada (Attorney General) that the Canadian Human Rights Act cannot be used to seek a remedy for sex discrimination in the Indian Act because complaints are a direct challenge to the legislation, not a challenge to discrimination in a public service. Legislating is not a public service. Consequently, there can be no human rights complaint.

The Court could have ruled otherwise. The Canadian Human Rights Commission argued that registration under the Indian Act is a service. If registration is denied because of the sex discrimination in the Indian Act, Jeremy Matson and others like him are barred from accessing tangible benefits, including extended health care coverage, and support for post-secondary education, as well as the intangible benefit of having one's First Nations ancestry officially recognized. The sex discrimination in the Indian Act is a bar to receiving benefits for those persons whose Indian ancestor is female not male, or whose female Indian ancestor married, or had children, with a non-status Indian man. This group is refused benefits in the same way that Robert Tranchemontagne was refused disability benefits in Ontario because his particular disability was alcohol and drug use (see Tranchemontagne v. Ontario (Dir., Disability Support Program) (2006), 56 C.H.R.R. D/1 (S.C.C.) and Ontario (Disability Support Program) v. Tranchemontagne (2010), 71 C.H.R.R. D/1 (Ont. C.A.).

There have been numerous cases in which tribunals and courts have accepted that public benefit schemes constitute services customarily available to the public. And, as the Commission pointed out, tribunals have dealt with discrimination in legislated rules governing receipt of benefits, including income assistance benefits (Hendershott v. Ontario (Community and Social Services) (No. 1) (2011), 72 C.H.R.R. D/1 (H.R.T.O.); survivor pension benefits (Gwinner v. Alberta (Minister of Human Resources and Employment) (2002), 44 C.H.R.R. D/52 (Alta. Q.B.)); and workers' compensation benefits (Seberras v. Workplace Safety and Insurance Board of Ontario (No. 5) (2012), 73 C.H.R.R. D/446 (H.R.T.O.), just to name some. When it is discrimination that bars an individual or group from receiving benefits, whether that bar is legislated or not, the Canadian Human Rights Tribunal should be able to address it.

Instead of taking a deep dive into the arguments about whether Matson was discriminatorily denied a service, the Supreme Court of Canada focused on whether the Court should defer to the Human Rights Tribunal. The majority (Gascon, Abella, Moldaver, Karakatsanis, Wagner JJ., and McLachlin C.J.) said that the Court should defer. Since the Tribunal decided that it could not deal with Matson's complaint, this seems a suspiciously easy ruling to make. It would have been a real test of the Court's willingness to defer to a human rights tribunal, if the Tribunal had found it could decide the case, and ruled that Matson was barred from tangible and intangible benefits because of sex discrimination.

This is a very disappointing decision from the Court, one that narrows the application of s. 5 of the Canadian Human Rights Act, and narrows access to justice for Indigenous complainants, who have now been told they must go to court and rely on the Charter to challenge any discrimination that flows from legislated provisions of the Indian Act.

Until 2008, s. 67 of the Act barred the Commission from accepting complaints regarding actions by Band Councils or the Government of Canada that were made pursuant to the Indian Act. When s. 67 was repealed, this was held out as an important step in improving access to justice for Indigenous people. But the Matson decision demonstrates just how empty a gesture it was to repeal s. 67. The capacity of the federal human rights system to assist First Nations people with discrimination authorized by the Indian Act was so late in coming, and now it has been seriously weakened by the Supreme Court of Canada.

This decision of the Supreme Court of Canada is also disappointing because it unnecessarily prolongs the life of legislated sex discrimination against First Nations women and their descendants. For Jeremy Matson, Sharon McIvor, and about 260,000 other First Nations women and descendants of women1 who would be entitled to Indian status if the sex discrimination were finally and completely eliminated, this decision is dismaying, but probably not surprising. Efforts to end Indian Act sex discrimination have been made continuously in Canada since Jeannette Corbiere Lavell and Yvonne Bedard were first in the Supreme Court in 1973. For forty-five years, neither Canada's courts and tribunals, nor successive Governments of Canada, have had the will to end it.

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1.             Parliamentary Budget Officer, Bill S-3: Addressing Sex-Based Inequities in the Indian Act, December 5, 2017, online: http://www.pbo-dpb.gc.ca/web/default/files/Documents/Reports/2017/Bill%2...

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