Ending sex discrimination in the Indian Act through '6(1)a All the Way'

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Sharon McIvor and Lynn Gehl. Photo: Nikolaus K. Gehl

Indigenous women have been working for almost half a century to eliminate the sex discrimination in the Indian Act. We have repeatedly challenged Canada through its own court system, and when Canada created new forms of sex discrimination instead of living up to its charter responsibility of gender equity, we were forced to go to the United Nations. The recent United Nations ruling regarding Sharon McIvor's petition is the latest effort in a long time commitment in our struggle to have Canada respect Indigenous women's human rights. Without a doubt, Indigenous women have done their work.

The "6(1)a All the Way" campaign stands behind this UN ruling and we are asking all Canadians to stand with us in this effort. Below are 10 points to remember:

1.)  On January 11, 2019, the United Nations International Covenant on Civil and Political Rights committee (ICCPR) ruled on Sharon McIvor's 2010 petition.

The ICCPR committee concluded that Canada is under an obligation to provide Sharon McIvor and her son Jacob Grismer with an effective remedy. This requires Canada to make full reparation to individuals whose rights have been violated simply because of their matrilineal descent. Further, Canada is obligated to ensure that section 6(1)a of the 1985 Indian Act be interpreted as to provide 6(1)a registration equally to all persons born before April 17, 1985, regardless of their patrilineal or matrilineal descent. There should be no preferential treatment.

2.)  On February 19, 2019, Senator Lillian Eva Dyck tabled a motion in the Senate chamber urging Canada to bring into force the remaining "6(1)a All the Way" provisions of Bill S-3 ending all the sex discrimination in the Indian Act once and for all. It was unanimously adopted.

3.)  In 2017, the "6(1)a All the Way" clauses were added to Bill S-3, yet they are not officially law. Because they are already written into the Indian Act the only thing that is needed is for Minister of Status of Women Maryam Monsef and Prime Minister Justin Trudeau to issue an order-in-council that proclaims the clauses into law. Once proclaimed through an order-in-council they immediately become law and there is no requirement for them to go through the Senate and the House of Commons.

4.)  The Indian Act was amended in 1985 to bring it in line with the Charter of Rights and Freedoms, in particular Section 15 which prohibits racial and sex discrimination. Regardless, at the time Canada did not eliminate all of the sex discrimination. Rather, what Canada did was invent the second generation cut-off rule and apply it to the re-instated Indian women and their descendants born before 1985 through designating the women 6(1)c Indian status. Yet Indian men and their descendants born before 1985 were all grandfathered in as 6(1)a, the strongest form of Indian status. Indigenous women are calling for 6(1)a status to be applied equally to everyone born before 1985. This is what is meant when we talk about the 6(1)a and 6(1)c hierarchy. This hierarchy and the sex discrimination inherent is the exact issue that the United Nations McIvor petition addressed.

5.)  It is not that difficult to understand the second generation cut-off rule; don't let it confuse you. It is similar to when a Canadian moves to England; while their child will be entitled to Canadian citizenship, their grandchild will not be entitled. In terms of Indian status registration it looks like this: 6(1), 6(2), non-status. In this way the second generation cut-off rule is a "bump, bump and you are out" kind of process. Of course the difference is that we are on Indigenous land, not British land. Again, the issue is that this rule is applied sooner to the women and their descendants. Read point 4 again if needed.

6.)  Indigenous women such as political icon Jeannette Corbiere-Lavell and Yvonne Bedard went all the way to the Supreme Court of Canada in 1973 on the issue of sex discrimination in the Indian Act where Indian women were enfranchised (lost Indian status) when they married non-status men. In 1981, Senator Sandra Lovelace Nicholas took the issue to the United Nations. In 2011, matriarch Sharon McIvor took it to the British Columbia Court of Appeal and was forced to petition the United Nations. In 2015, Stephane Descheneaux, Susan Yantha and Tammy Yantha went to the Superior Court of Quebec. In 2016, Lynn Gehl took the issue of the sex discrimination inherent in Indian and Northern Affairs Unstated Paternity policy, a newly created discrimination, to the Court of Appeal for Ontario. Clearly Indigenous women and their descendants have done the work. As stated, there is almost 50 years of litigation both within Canada and at the international level. As Jeannette Corbiere-Lavell has recently lamented, "It is time for Canada to get rid of this sex discrimination!"

7.)  The common position Canada relies on to obfuscate the need to eliminate all the sex discrimination in the Indian Act is to argue that there is a need to consult with First Nations communities, while also conflating the issue with the matter of First Nation band membership. Do not let this confuse you either. It is entirely incorrect for Canada to argue there is a need to consult on human rights. A right is a right! As Sharon McIvor has recently argued, Canada does not get to consult on our equality rights. Membership is a different matter. The Indian Act is Canadian law and it needs to be charter compliant.

8.)  It is often said that there is a link between the sexual violence inflicted upon Indigenous women and Canada's failure to respect Indigenous women's rights. When the nation state fails to respect Indigenous women and our right to be free from sex discrimination this brings with it a dangerous message to the rest of Canada and the world. Indian status registration provides women and their descendants their treaty rights, the right to live in their communities with their family and extended family members, and is closely tied to First Nation band membership and citizenship. In many situations the loss of Indian status registration makes Indigenous women more vulnerable to poverty, homelessness and sexual violence.

9.)  There is the call for the prime minister and the minister of status of women to address this issue of sex discrimination through issuing an order-in-council. This can be done on any Tuesday when cabinet meets. However it is crucial for this to take place before June 18th, 2019 when Parliament rises for the summer and before the federal election in the fall. If the prime minister is able to end the sex discrimination in the Indian Act, he will accomplish what no other PM in Canada has been able to achieve and it will be a celebration of equality for Indigenous women and their descendants.

10.)  Through legislation as far back as the 1857 Civilization Act, Indian women and their descendants were enfranchised when their husbands or fathers were enfranchised. It was through the 1869 Enfranchisement Act where Indian women, and their descendants, who married non-Indian men were enfranchised and denied their treaty rights. Eventually, this process was codified in the 1951 Indian Act. Here we are 162 years later in a post-charter era, yet sex discrimination in the Indian Act continues. This is shameful.

As Sharon McIvor has stated, it is time for Canada to "bring us all home."

The Feminist Alliance for International Action is asking people to take on six tasks. Learn more here.   

Lynn Gehl, PhD, is an Algonquin Anishinaabe-kwe. She is an advocate, artist, writer and an outspoken critic of colonial law and policies that harm Indigenous women, men, children and the Land. Her first book The Truth that Wampum Tells: My Debwewin on the Algonquin Land Claims Process was published with Fernwood Publishing in 2014. Her 2017 book, titled Claiming Anishinaabe: Decolonizing the Human Spirit, explores her journey deeper into Indigenous knowledge and was published with the University of Regina Press. In April 2017 Lynn was successful in defeating Indian and Northern Affairs Canada's unstated paternity policy when the Court of Appeal for Ontario ruled the sex discrimination in the policy was unreasonable.

Photo: Nikolaus K. Gehl

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