By Lloyd Dolha
After over twenty years fighting for greater equality between Aboriginal women and men, the Supreme Court of Canada (SCC) dismissed with costs the case of Sharon Donna McIvor v. Registrar, Indian and Northern Affairs Canada, on November 5, 2009. The Native Women’s Association of Canada (NWAC) expressed extreme disappointment with the ruling not to grant Ms. McIvor leave to appeal the issue of who can and cannot claim Indian status as an issue of “national importance.” “Ms. McIvor fought for many years for her, her children, and grandchildren’s rights,” said NWAC president Jeanette Corbiere Lavall. “She has fought for all Aboriginal women and men who deserve the proper rights acquired to them, and I congratulate her for her determination.”
On April 6, 2009, the BC Court of Appeal unanimously held that Section 6 of the Indian Act violated equality provisions of the Charter of Rights and Freedoms, discriminating against some First Nations women and their children. McIvor claimed that despite amendments made to the Indian Act under Bill C-31 in 1985, women were still not being treated the same as men, which violated Section 15 of the Charter of Rights and Freedoms. After legislative changes to the Indian Act, McIvor became classified as a section 6(1) status Indian, but because she had children with a non-Indian man, her son was classified as a section 6(2) status Indian and could not pass Indian status on to his children (also born to a non-status spouse).
In the BCCA decision, the federal government was given one year to amend the offending sections that cut off status to second-generation status Indians. But the BCCA ruling narrowed the scope of that discrimination from 1985 to present day. The earlier 2007 British Columbia Supreme court ruling would have extended status to anyone who could prove matrilineal decent from 1867 to 1985—a difference between mere thousands and up to 200,000 who could have claimed status. McIvor appealed to the Supreme Court of Canada after the BCCA narrowed the scope of who could claim status from matrilineal decent.
The Harper government announced their approach in response to the decision and proposed legislative response on August 24, 2009 and gave First Nations until November 14, 2009 to provide input on the proposed amendment. A bill regarding the proposed changes is expected to be before the House of Commons in January 2010. The bill is not expected to contain a comprehensive redress for historic discrimination against Aboriginal women and their descendants.
Although, the SCC dismissed McIvor’s appeal, Assembly of First Nations (AFN) National Chief Shawn Atleo and the AFN’s Women’s Council chair Kathleen Mchugh said that First Nations will continue to push the federal government to fully and meaningfully work with First Nations to restore the inherent rights of First Nations to determine who their citizens are. “It is time for the federal government to get out of the business of controlling First Nations citizenship and make way for First Nations to exercise our own laws that will redress discrimination and damage caused by the Indian Act,” said Atleo.
Indian and Northern Affairs Canada (INAC) is pursuing an amendment to the act that is expected to be in place by April 9, 2010. First Nations say they have not been adequately consulted regarding the amendments nor provided clear information on the impacts for their communities. “At its heart, this is a human rights issue,” said McHugh. “The federal government’s repeated refusal to work with First Nations governments to address it is a stain on the Canada’s reputation.” The AFN has passed three national resolutions calling on the federal government to address the issue to no avail.
Ontario Regional Chief Angus Toulouse of the Chiefs of Ontario said the Tory’s proposed legislation reflects the BCCA’s narrow perspective and doesn’t respect the right of First Nations to control determination of their collective and individual identity. Toulouse said imposition of Indian status registration requirements outlined in the Indian Act is a violation of First Nations Charter rights and failure to properly consult on such a fundamentally important matter violates First Nations rights under the Canadian constitution. “I call on Chuck Strahl, Minister of Indian and Northern Affairs Canada, to halt this unjust process and determine in conjunction with First Nations the most appropriate and effective way to deal with this matter,” said Toulouse. “The First Nations of Ontario find this situation unacceptable and will strongly oppose the imposition of a legislative amendment that fails to address the larger priority issue of the right to determine our own citizenship.”
Anishinabek Grand Council Chief Patrick Madahbee said the decision not to hear McIvor’s appeal is further proof that jurisdiction on the issue of determining citizenship should rest solely with First Nations. The Anishinabek are developing their own citizenship code. “We’ve always maintained—as does the United Nations—that no nation has the right to determine citizenship criteria for another nation,” said Madahbee. “That’s why the Anishinabek created the role of Citizenship Commissioner and the template for our own citizenship law: E-Dbendaagzijig (those who belong). Only our communities have the right to say who their citizens are.” Anishinabek Nation Commission Commissioner on Citizenship and NWAC president Jeannette Corbiere Lavall said she expects implementation of their citizenship code by June 2011. “As a result of the community consultation sessions held in 2008-2009, we’ve agreed to move forward with the one-parent rule and Anishinaabe ancestry to determine E-Dbendaagzijig (those who belong),” said Lavell. “We are gearing up for an impact study to see what social impacts increasing our citizens may have on our communities.”