The feds’ talk around Bill S-3 reveals Indigenous women and children are being ignored in discussions on Indian status
When Prime Minister Justin Trudeau appeared at the Special Meeting of the Assembly of First Nations shortly after his election in 2015, he said there was no relationship more important to him, and to Canada, than the one with Indigenous peoples. Trudeau promised a renewed nation-to-nation relationship inspired by the original spirit and intent of the treaties that also respects both the inherent and constitutionally-protected rights of First Nations. He further promised that the “profoundly damaging” adversarial relationship and top-down approach of past governments would be abandoned in favour of one that is based on partnership.
What he forgot to say was that none of these promises apply to Indigenous women and children.
Bill S-3, An Act to Amend the Indian Act (elimination of sex-based inequities in registration), was introduced in the Senate in 2016 in response to the Descheneaux case—a decision from Quebec Superior Court which held that the Indian Act’s registration provisions around who is an Indian still discriminate against the descendants of Indigenous women. Bill S-3 represents another piecemeal effort by the federal government to remove a sliver of the sex discrimination in the status registration provisions. This is despite the fact that Justice Masse of the Quebec Superior Court encouraged, even pleaded, with the federal government to once and for all address the longstanding gender discrimination in the Indian Act’s registration provisions, not just the piece that the Deschenaux case identified.
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Since the first Indian Act in 1876, Indian status has been primarily based on descent from a male Indian. In the early versions of the Indian Act, an Indian was defined as a male Indian, the wife of a male Indian, or the child of a male Indian. Indian women did not have personhood and status in their own right, or the ability to transmit status. Indian women lost their status if they “married out” (married a non-Indian) while Indian men endowed their status upon their non-Indian wives.
Mary Two-Axe was an early and prominent Indigenous women activist who advocated against this sort of discrimination, ONE THAT stripped Indigenous women and their children of their identities, membership and residency in their First Nations, participation in their First Nation governments, and enjoyment of their Aboriginal and treaty rights and basic social programs and services, like education and health care.
Jeannette Corbiere-Lavell and Yvonne Bedard sued Canada for this ongoing gender discrimination in the 1970s. Their loss at the Supreme Court of Canada was followed by a successful human rights claim to the United Nations by Sandra Lovelace—now Senator Sandra Lovelace-Nicholas—which found that Canada was wrongly denying Indigenous women the right to enjoy their culture within their communities. This forced Canada to amend the Act in 1985 (Bill C-31), but instead of removing the sex discrimination, they codified it, placing the males and their descendants who had status prior to April 17, 1985 in the 6(1)(a) category—or “full status”—and bringing back the Indian women who had been denied status or lost it by marrying out, into a second-class category called 6(1)(c), with a lesser ability to transmit their status than the men and their descendants.
As a result, Sharon McIvor was forced to bring another gender discrimination claim to protect not only her rights, but the rights of her descendants. Her court victory led to another amendment, Bill C-3—but once again, Canada refused to eliminate the sex-based-hierarchy core of the gender discrimination. It should be no surprise then, that we are here again—at the legislative review stage for yet another amendment to the Indian Act’s registration provisions (Bill S-3), begging Canada to end its discrimination against Indigenous women and children.
Although Indigenous Affairs Minister Carolyn Bennett promised First Nations that, in response to the Deschenaux case, she would eliminate all known sex-based discrimination in Indian registration, she now stands in direct opposition to an historic amendment to Bill S-3 made by the Senate of Canada that would finally place Indian men and women and their descendants born prior to 1985 on an equal footing. This amendment has been dubbed the “6(1)(a) all the way” amendment, because it would make Indian men and their descendants and Indian women and their descendants equally entitled to full 6(1)(a) status. At committee she testified that she is a feminist but warns of “dire” consequences if the gender equality amendment is passed.
Bennett’s fierce defence of preserving the gender hierarchy in the Indian Act violates section 15 of the Canadian Charter of Rights and Freedoms guaranteeing equality; section 35(4) of the Constitution Act, 1982, which guarantees Aboriginal and treaty rights equally to men and women; and section 3 of the Canadian Human Rights Act which prohibits gender discrimination. The refusal to eliminate the discrimination also flies in the face of repeated recommendations from the United Nations and international human rights bodies, which have long called for Canada to completely and finally eliminate gender discrimination from the Indian Act.
In their reports on the Canadian human rights crisis of murders and disappearances of Indigenous women and girls, the United Nations Committee on the Elimination of Discrimination against Women and the Inter-American Commission on Human Rights found that Indian Act sex discrimination is one of the root causes of the murders and disappearances. It is a matter of life and death.
Minister Bennett informed the United Nations in May that Canada’s support for the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is unqualified, and UNDRIP in article 44 guarantees all rights equally to Indigenous men and women. But the federal government’s persistent opposition to the Senate’s equality amendment directly contradicts this claim of support and the promises she and Prime Minister Trudeau have made.
The Senate suspended its study of Bill S-3 in December and instructed the Minister to go back and do it right. But even after a court extension, the Minister did not present a bill that eliminated the sex discrimination and the Senate was forced to make its own amendment, because Canada refuses to eliminate the core of the gender discrimination. When pressed on why they have failed to present a bill which eliminates the gender equality, the Minister promises only more talk. It is crystal clear now that the federal government will not remove the discrimination unless we all care enough to force them to do it. The time for talk has long passed.
In 2016, 392,902 new babies were born in Canada and 305,000 new immigrants were welcomed to Canada, according to Statistics Canada. Nearly 700,000 new Canadians are added to Canada’s total population every year. By comparison, there are only 851,560 registered Indians in Canada—less than 2 per cent of the total population. There were millions of Indigenous peoples in Canada before colonization and genocidal government policies aimed at reducing the number of Indians. Even today’s Indian Act maintains its disappearing Indian formula such that each First Nation has an extinction date; in 1992, a study was commissioned that showed that the current Indian rules related to registration will ensure the eventual extinction of registered status Indians—some First Nations sooner than others—in the spirit of the “final solution” advocated by John A. Macdonald and former superintendent of Indian Affairs Duncan Campbell Scott. It is not too much to expect that, in an era of reconciliation, Canada would stop targeting Indigenous women and children as the primary means of legislating Indians out of existence.
Canada is at a historic moment in time. Its entire Senate passed an amendment to finally bring equality to Indigenous women and children—an issue that united all parties. If Trudeau really means what he says about respecting the rights of Indigenous peoples in the renewed relationship, it should follow that the House would stand united in passing the “6(1)(a) all the way” amendment.
Passing the Senate’s equality amendment for Bill S-3 in the House will not bring back all our people we have lost through scalpings, forced sterilizations, residential schools or murdered and missing Indigenous women and girls. But it would be would a sign of good faith that the new nation-to-nation relationship founded on the original spirit and intent of our treaties will include Indigenous women and children. It would also demonstrate that the laws of equality for women include Indigenous women.
Pamela Palmater is a Mi’kmaw citizen and member of Eel River Bar First Nation. She has been a practicing lawyer for 18 years and currently holds the Chair in Indigenous Governance at Ryerson University. Sharon McIvor is a Thomson Indian and member of the Lower Nicola Band in B.C. She is a lawyer, teacher, and longtime advocate for Indigenous women and was the plaintiff in the McIvor case.