2010 Gwen Brodsky, Sharon McIvor, Shelagh Day. Photo credit Lynn Gehl.
Here it is 2019 yet the Indian Act continues to discriminate against Indigenous women.
On January 11, 2019 a United Nations International Covenant on Civil and Political Rights Committee made its ruling on Sharon McIvor’s 2010 petition. While this ruling is 18 pages, here are some of the bare bone facts of the McIvor petition and the UN ruling.
Sharon’s Background:
Sharon with her son Jacob Grismer, represented by Gwen Brodsky, submitted a petition to the International Covenant on Civil and Political Rights (CCPR). Sharon was forced to take this route because she exhausted all domestic options within the Canadian court system. The short story is Sharon wanted to be the same as her brother regarding the matter of the 6(1)(a) and 6(1)(c) hierarchy where Indian men and their descendants born before 1985 are registered under the strongest form of status registration known as section 6(1)(a); yet Indian women who were re-instated in 1985 are only registered under section 6(1)(c) where as a result their descendants are registered under an even weaker form of Indian status 6(2) or not entitled to registration. This has to do with what is called the second generation cut-off rule.
The second generation cut-off rule is not hard to understand: after two generations of parenting with non-Indians, status is no longer obtainable. This is similar to when a Canadian citizen moves to Britain. Their child will be entitled to Canadian citizenship but not their grandchild. It is essentially a “bump, bump, and you are out” kind of mechanism. In terms of Indian status registration it moves like this: 6(1), 6(2), and non-status.
CCPR Sections Sharon relied on were 2, 3, 26, and 27:
Article 2: Individuals have the right to live without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3: State Parties must ensure the equal right of men and women to the enjoyment of all civil and political rights. Article 26: All persons are equal before the law and are entitled to the equal protection of the law. The law shall guarantee equal and effective protection against discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27: Minority persons shall not be denied the right to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Read the United Nations International Covenant on Civil and Political Rights here: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Sharon’s Right to Live Free from Sex Discrimination:
“As a result of the sex-based hierarchy of the status registration regime, Sharon McIvor suffered a form of social and cultural exclusion. Her experience has been that within Aboriginal communities there is a significant difference in the degree of esteem that is associated with section 6(1)(a) status. She has experienced stigma that is associated with being a ‘Bill C-31 woman,’ the label that is given to women who have been assigned to the section 6(1)(c) sub-class. The implication is that they are inferior to and ‘less Indian’ than their male counterparts. This extended to her children, to whom she was unable to transmit status, which made her feel inferior. She was unable to access the tangible benefits of status – such as extended health benefits and post-secondary education funding – available under the 1985 Act for her children when they were growing up.”
“As a result of being registered under section 6(1)(c) of the 1985 Indian Act, Sharon is entitled to receive the same tangible benefits as those registered under section 6(1)(a). However, she does not benefit from the full recognition of status associated with section 6(1)(a). The 2009 Court of Appeal decision suggested, erroneously, that discrimination based on matrilineal descent may not constitute sex discrimination if there are multiple generations involved. The Indian Act’s prejudicial treatment of matrilineal descent amounts to sex discrimination even if it is against a grandchild or great-grandchild, rather than the child, of the woman who was unable to transmit status solely because of her sex.”
Further, “The 2009 decision of the British Columbia Court of Appeal and the subsequent denial of the Supreme Court of Canada of leave to appeal that decision have deprived the authors of the remedy they obtained in the Trial Court. The only effective remedy will be one which eliminates the preference for male Indians and patrilineal descent and confirms the entitlement of matrilineal descendants, including of women who married out, to full section 6(1)(a) status.”
“The authors have demonstrated significant interference with their right to the equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their Indigenous cultural identity. A foundational aspect of an individual’s right to enjoy his or her culture is the formation of a sense of identity and belonging to a group, and recognition of that identity and belonging by others in the group. The capacity to transmit one’s cultural identity is also a key component of cultural identity.”
Canada’s Pitiful Arguments Justifying Sex Discrimination:
Sharon McIvor fails to “demonstrate that the alleged harms are attributable to the Government. The impacts on the authors’ social and cultural relationships that they perceive or in fact suffer because of the provisions under which they are eligible for status should be attributed to the authors’ family and larger social and cultural communities, and not to the State.”
“What the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination based on sex. The State party is not obligated, under the Covenant, to rectify discriminatory acts that pre-dated the coming into force of the Covenant. Apart from the uneven application of the second generation cut-off, the impact of which on the authors was corrected by the 2011 amendments, the 1985 amendments did – to a very large degree – go back in time so as to deem ancestors of living persons eligible for re-instatement in order to rectify the problem in their line of descent.”
On the Matter of Consultations:
While Canada made arguments about the need to consult with First Nations people on this matter, Sharon argues, “The State party attempts to excuse its failure to bring the Government’s ‘6(1)(a) all the way’ clause into effect for an indefinite period of time on the grounds that it wishes to consult First Nations. It is not appropriate for the State party to consult about whether it will continue legislated discrimination. Nor is it necessary to consult about discrimination in the status registration scheme. The State party has been consulting about this discrimination for decades, and consultation has been a tactic for delaying the elimination of sex discrimination. More delay cannot be countenanced under the Covenant.”
Sharon Wins; CCPR Concludes:
The Committee “concludes that the continuing distinction based on sex in section 6(1) of the Indian Act constitutes discrimination, which has impacted the right of the authors to enjoy their own culture together with the other members of their group. The Committee therefore concludes that the authors have demonstrated a violation of articles 3 and 26, read in conjunction with article 27 of the Covenant.”
Further, “In accordance with article 2(3)(a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, (a) to ensure that section 6(1)(a) of the 1985 Indian Act, or of that Act as amended, is interpreted to allow registration by all persons including the authors who previously were not entitled to be registered under section 6(1)(a) solely as a result of preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants, born prior to 17 April 1985; and (b) to take steps to address residual discrimination within First Nations communities arising from the legal discrimination based on sex in the Indian Act. Additionally, the State party is under the obligation to take steps to avoid similar violations in the future.”
Canada has 180 days to respond to this ruling. Read the complete ruling here:
https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/CAN/CCPR_C_124_D_2020_2010_28073_E.pdf
Follow: #17Tuesdays #AnyTuesday
On January 11, 2019 a United Nations International Covenant on Civil and Political Rights Committee made its ruling on Sharon McIvor’s 2010 petition. While this ruling is 18 pages, here are some of the bare bone facts of the McIvor petition and the UN ruling.
Sharon’s Background:
Sharon with her son Jacob Grismer, represented by Gwen Brodsky, submitted a petition to the International Covenant on Civil and Political Rights (CCPR). Sharon was forced to take this route because she exhausted all domestic options within the Canadian court system. The short story is Sharon wanted to be the same as her brother regarding the matter of the 6(1)(a) and 6(1)(c) hierarchy where Indian men and their descendants born before 1985 are registered under the strongest form of status registration known as section 6(1)(a); yet Indian women who were re-instated in 1985 are only registered under section 6(1)(c) where as a result their descendants are registered under an even weaker form of Indian status 6(2) or not entitled to registration. This has to do with what is called the second generation cut-off rule.
The second generation cut-off rule is not hard to understand: after two generations of parenting with non-Indians, status is no longer obtainable. This is similar to when a Canadian citizen moves to Britain. Their child will be entitled to Canadian citizenship but not their grandchild. It is essentially a “bump, bump, and you are out” kind of mechanism. In terms of Indian status registration it moves like this: 6(1), 6(2), and non-status.
CCPR Sections Sharon relied on were 2, 3, 26, and 27:
Article 2: Individuals have the right to live without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 3: State Parties must ensure the equal right of men and women to the enjoyment of all civil and political rights. Article 26: All persons are equal before the law and are entitled to the equal protection of the law. The law shall guarantee equal and effective protection against discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27: Minority persons shall not be denied the right to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Read the United Nations International Covenant on Civil and Political Rights here: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
Sharon’s Right to Live Free from Sex Discrimination:
“As a result of the sex-based hierarchy of the status registration regime, Sharon McIvor suffered a form of social and cultural exclusion. Her experience has been that within Aboriginal communities there is a significant difference in the degree of esteem that is associated with section 6(1)(a) status. She has experienced stigma that is associated with being a ‘Bill C-31 woman,’ the label that is given to women who have been assigned to the section 6(1)(c) sub-class. The implication is that they are inferior to and ‘less Indian’ than their male counterparts. This extended to her children, to whom she was unable to transmit status, which made her feel inferior. She was unable to access the tangible benefits of status – such as extended health benefits and post-secondary education funding – available under the 1985 Act for her children when they were growing up.”
“As a result of being registered under section 6(1)(c) of the 1985 Indian Act, Sharon is entitled to receive the same tangible benefits as those registered under section 6(1)(a). However, she does not benefit from the full recognition of status associated with section 6(1)(a). The 2009 Court of Appeal decision suggested, erroneously, that discrimination based on matrilineal descent may not constitute sex discrimination if there are multiple generations involved. The Indian Act’s prejudicial treatment of matrilineal descent amounts to sex discrimination even if it is against a grandchild or great-grandchild, rather than the child, of the woman who was unable to transmit status solely because of her sex.”
Further, “The 2009 decision of the British Columbia Court of Appeal and the subsequent denial of the Supreme Court of Canada of leave to appeal that decision have deprived the authors of the remedy they obtained in the Trial Court. The only effective remedy will be one which eliminates the preference for male Indians and patrilineal descent and confirms the entitlement of matrilineal descendants, including of women who married out, to full section 6(1)(a) status.”
“The authors have demonstrated significant interference with their right to the equal exercise and enjoyment of their culture, in particular their right to the full enjoyment of their Indigenous cultural identity. A foundational aspect of an individual’s right to enjoy his or her culture is the formation of a sense of identity and belonging to a group, and recognition of that identity and belonging by others in the group. The capacity to transmit one’s cultural identity is also a key component of cultural identity.”
Canada’s Pitiful Arguments Justifying Sex Discrimination:
Sharon McIvor fails to “demonstrate that the alleged harms are attributable to the Government. The impacts on the authors’ social and cultural relationships that they perceive or in fact suffer because of the provisions under which they are eligible for status should be attributed to the authors’ family and larger social and cultural communities, and not to the State.”
“What the authors seek would potentially involve descendants of many generations removed from the female ancestor who initially suffered discrimination based on sex. The State party is not obligated, under the Covenant, to rectify discriminatory acts that pre-dated the coming into force of the Covenant. Apart from the uneven application of the second generation cut-off, the impact of which on the authors was corrected by the 2011 amendments, the 1985 amendments did – to a very large degree – go back in time so as to deem ancestors of living persons eligible for re-instatement in order to rectify the problem in their line of descent.”
On the Matter of Consultations:
While Canada made arguments about the need to consult with First Nations people on this matter, Sharon argues, “The State party attempts to excuse its failure to bring the Government’s ‘6(1)(a) all the way’ clause into effect for an indefinite period of time on the grounds that it wishes to consult First Nations. It is not appropriate for the State party to consult about whether it will continue legislated discrimination. Nor is it necessary to consult about discrimination in the status registration scheme. The State party has been consulting about this discrimination for decades, and consultation has been a tactic for delaying the elimination of sex discrimination. More delay cannot be countenanced under the Covenant.”
Sharon Wins; CCPR Concludes:
The Committee “concludes that the continuing distinction based on sex in section 6(1) of the Indian Act constitutes discrimination, which has impacted the right of the authors to enjoy their own culture together with the other members of their group. The Committee therefore concludes that the authors have demonstrated a violation of articles 3 and 26, read in conjunction with article 27 of the Covenant.”
Further, “In accordance with article 2(3)(a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, (a) to ensure that section 6(1)(a) of the 1985 Indian Act, or of that Act as amended, is interpreted to allow registration by all persons including the authors who previously were not entitled to be registered under section 6(1)(a) solely as a result of preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants, born prior to 17 April 1985; and (b) to take steps to address residual discrimination within First Nations communities arising from the legal discrimination based on sex in the Indian Act. Additionally, the State party is under the obligation to take steps to avoid similar violations in the future.”
Canada has 180 days to respond to this ruling. Read the complete ruling here:
https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/CAN/CCPR_C_124_D_2020_2010_28073_E.pdf
Follow: #17Tuesdays #AnyTuesday
© Lynn Gehl, Ph.D. is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. In 2017 she won an Ontario Court of Appeal case on sex discrimination in The Indian Act, and is an outspoken critic of Canada's land claims process. Recently she published Claiming Anishinaabe: Decolonizing the Human Spirit. You can reach her through, and see more of her work, at www.lynngehl.com.
