This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
Section 6 of the Indian Act, which establishes the criteria for determining who is, and who is not, a status “Indian”, was amended in 2010 and may be amended again in the near future because of a ruling by the Quebec Superior Court in Descheneaux c. Canada (Procureur général), 2015 QCCS 3555. The federal government recently decided to withdraw its appeal of the Descheneaux case wherein the plaintiffs argued that they suffered discrimination under section 6 of the Indian Act on the basis of sex, contrary to the Charter of Rights and Freedoms. The Court found in favour of the plaintiffs and held that paragraphs 6(1)(a), (c) and (f) and subsection 6(2) of the Indian Act unjustifiably infringed their right to equality guaranteed under section 15 of the Charter. The Court declared that these provisions were of no force and effect; however, it suspended its declaration of invalidity for a period of eighteen (18) months to give the federal government an opportunity to amend the Act.
The legislative developments in Canada respecting Indian status under the Indian Act are technical and complex. The earliest versions of legislation dealing with Indians in Canada, including the An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, sought to define classes of persons who qualified as Indians. Colonial governments implemented formulas for differentiating Indians from other citizens, ostensibly due to the fact that a person designated as a status Indian enjoyed certain tangible benefits, such the right to share in the lands and resources set aside for the various “tribes, bands or bodies of Indians”. Conversely, status Indians did not have certain fundamental civic rights, such as the right to vote. The criteria for determining who was eligible to be a status Indian were ultimately consolidated in the Indian Act, 1876. Provisions in the Indian Act pertaining to status were later amended in 1951.
Indian men and women were treated unequally under the early versions of the Indian Act. The various provisions delineating who qualified as a status Indian were complex; however, one of the salient features of this legislation is that women who were classified as status Indians were simply unable to protect and confer their status in the same manner as their male counterparts. For example, an Indian woman lost her status as soon as she married a non-Indian man. Also, the ability of Indian women to transmit their status to their children was significantly limited. Men, on the other hand, could pass on their status to their children (subject to a few exceptions) and could confer status on their non-Indian spouses.
In 1985, the Indian Act was amended to ensure compliance with the Charter. Indian women who previously lost their status as a result of marrying non-Indians regained their status. The amendments to the Act simultaneously implemented a new system for passing on status, referred to as the “second generation cut-off” rule. Although the intention of the 1985 amendments was to eliminate discrimination on the basis of sex, these provisions were heavily criticized by women of Aboriginal decent for falling short. That said, the 1985 Indian Act was not successfully challenged until 2009, when the British Columbia Court of Appeal released its decision in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153. As a result of the Court’s decision, the Indian Act was amended in 2010 by adding paragraph 6(1)(c.1). This amendment was limited in scope, and applied only to the narrow circumstances of the plaintiffs in the McIvor case.
The Descheneaux case found that the 2010 amendments to the Indian Act did not address all instances of sex discrimination. At least two classes of people argued that they continued to suffer sex discrimination under the Indian Act: (i) grandchildren, and their descendants, of women who had lost their status as a result of “marrying out” and who were reinstated as status Indians under section 6(1)(c) of the 1985 Indian Act; and (ii) “illegitimate” female daughters of male Indians and non-Indian mothers who were reinstated under section 6(2) of the 1985 Indian Act. The Court found that the 2010 Indian Act did not fully eliminate the discrimination suffered by women prior to 1985. In other words, individuals who claimed Indian status through their male ancestors enjoyed a significant advantage as compared to those claiming through female lineage. The Court found that this ongoing sex discrimination was not justified under section 1 of the Charter and declared the relevant provisions within section 6 of the Indian Act to be of no force and effect.
The Court’s written reasons send a strong message to Parliament and make it clear that Parliament is to eliminate, once and for all, sex discrimination in section 6 of the Indian Act. Parliament has until early 2017 to remedy this discrimination in the Act. The Court recognized the complexity of the Indian status issue in Canada. For instance, during the 2010 round of amendments, Indian Affairs Minister Chuck Stahl stated “[w]e won’t have this bill solved in our lifetime, I don’t think.” Changes in the Indian Act provisions governing Indian status could significantly increase the number of registered Indians. In many cases, this will increase the membership of First Nations and result in increased demands on local First Nations’ resources. Without additional funding for local First Nations to handle the increase in membership, changes in to Section 6 will put added pressure on already strained First Nation budgets.