Over the years, there have been various allegations that the Indian Act continues to discriminate on the basis of gender, despite previous amendments to the Indian Act in 1985 (Bill C-31). Various court cases have been commenced to pursue such allegations. The McIvor case is the first of these to be decided.
In April 2009, the Court of Appeal for British Columbia ruled in the case of McIvor v. Canada that the Indian Act discriminates between men and women with respect to registration as status Indians. In that ruling, the Court gave the Government of Canada one year, until April 6, 2010, to amend certain registration provisions of the Indian Act that were found to be unconstitutional. In order to comply with the Court's decision, the Government of Canada has proposed legislation to amend certain registration provisions of the Indian Act.
The Court ruling stems from a civil law suit that Sharon McIvor launched in October 1989, in her bid to acquire the ability to transmit Indian status to her grandchildren. Ms. McIvor claimed that section 6 of the Indian Act was discriminatory in that it treated the descendants of Indian women who married non-Indian men differently from the descendants of Indian men who married non-Indian women.
Unlike a male Indian in her situation, Ms. McIvor's ability to pass status to her grandchildren depended on her son parenting with a registered Indian. Children of her male counterpart had status prior to 1985, and so were registered under subsection 6(1) of the Indian Act. Any grandchild of this male Indian could be registered. Mr. Grismer, however, having only one registered Indian parent, was registered under subsection 6(2). According to the “second generation cut-off” rule, the fact that he had a child with a non-Indian meant that his child (Ms. McIvor's grandchild) could not be registered.
Section 6 of the Indian Act contains the provisions which determine the eligibility of individuals for Indian status. These provisions are at the centre of the McIvor case.
In June 2007, a judge of the Supreme Court of British Columbia essentially agreed with Ms. McIvor's contentions that she and her son were not in the same position with respect to transmitting Indian status to future generations, as they would have been if she had been male.
The Supreme Court of British Columbia ruled that section 6 of the Indian Act violates the Canadian Charter of Rights and Freedoms, and was therefore without effect insofar as it is discriminatory. The judge refused to grant Parliament time to address the matter, and issued an order apparently calling for the immediate registration of all descendants of women who married non-Indians at any time prior to 1985, no matter how far in the past.
The federal government was concerned that it would be unable to implement such a broad and imprecise remedy and appealed the decision to the Court of Appeal for British Columbia. In April 2009, that court found that section 6 of the Indian Act is discriminatory, but in a more limited way than had the Supreme Court of British Columbia.
The April 2009 ruling provided the necessary clarity and direction on which the federal government could reasonably act. Accordingly, in June 2009, the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians announced that the federal government would not appeal the Court of Appeal's ruling in McIvor v. Canada and would proceed with amendments to the Indian Act as ordered by the Court.
The Court of Appeal for British Columbia found that the forward-looking rules for registration set out in previous amendments to the Indian Act in 1985 (Bill C-31) are not discriminatory. The Court also recognized the legitimacy of the additional objectives embodied in the 1985 amendments, in particular preserving existing rights (for example, women who, in the past, gained Indian status by marrying a registered Indian). Nevertheless, it concluded that discrimination arose from the manner in which Bill C-31 dealt with the transition from the past registration rules to the future non-discriminatory regime.
Specifically, between 1951 and 1985, the Indian Act provided that if a child's mother and paternal grandmother did not have a right to Indian status other than by virtue of having married Indian men, the child had status only up to the age of 21 (commonly referred to as the “double mother rule”). Bill C-31 eliminated the "double mother" rule, and restored status to people who had been affected by it when they reached age 21.
As part of its analysis under the Canadian Charter of Rights and Freedoms, the Court of Appeal compared the ability of Ms. McIvor's son to transmit status to his children with that of the child of a "hypothetical brother" of Ms. McIvor.
The Court of Appeal found that eliminating the effects of the "double mother rule" through Bill C-31 created a new inequality that disfavours Ms. McIvor and her descendants.
The Court of Appeal found that this distinction was not justified by the objective of preserving existing rights, because Bill C-31 enhanced the existing "age-limited" right to transmit status to the ability to transmit status for life.
For this reason, the Court of Appeal declared paragraphs 6(1)(a) and (c) contrary to the Charter. The Court expressed doubt about whether more remote descendants of persons affected by the old rules should receive a remedy today. In light of the complexity of the issues involved, the Court of Appeal chose to leave it to Parliament to develop an appropriate remedy, and suspended its declaration of invalidity for one year to allow time for Parliament to act.
Following the April 2009 ruling by the Court of Appeal for British Columbia, Ms. McIvor sought leave from the Supreme Court of Canada to appeal that decision. In November 2009, the Supreme Court dismissed Ms. McIvor's application for leave to appeal.
If the Indian Act is not amended by the deadline imposed by the Court of Appeal for British Columbia, it is important to emphasize two points. First, no one who has been included in the Indian Register by that time under the existing law will lose his or her status as a result of the missed deadline. Second, unless courts in other provinces deal with these issues, the process of registration would be cast into doubt only in the province of British Columbia.
The federal government has introduced the proposed amendments to the Indian Act to eliminate the discrimination identified by the Court of Appeal, and in an attempt to avoid a legislative void in British Columbia and any uncertainty in First Nation communities that may result from such a void.
Every effort will be made to meet the deadline imposed by the Court of Appeal for British Columbia, but ultimately this will depend on the parliamentary process.