Supreme Court of Canada –  S.C.R. 1349
The Lavell case is one of the first in a set of groundwork laid by Aboriginal women of Canada to obtain equality before the law. At the time, Indian women who married non-Indian men lost their status as a registered Indian, although the same was not true for men.
Although they lost this case, they continued the right until the McIvor decision in 2009.
Should s. 12 (1)(b) of the Indian Act, which provides that registered Indian women who marry non-Indians lose their status, be rendered inoperative because of discrimination contrary to the Canadian Bill of Rights?
The provision that states that registered Indian women who marry non-Indians automatically lose their status is valid and continues to have force and effect (5 against 4).
Between: Attorney-General of Canada
And: Jeannette Vivian Corbiere Lavell
Between : Richard Isaac and Others
And: Yvonne Bédard
Interveners: Six Nations Band of Indians of the County of Brant, Native Council of Canada, Rose Wilhem, Alberta Committee on Indian Rights for Indian Women inc., Viola Shannacaffo, University Women’s Club of Toronto, University Women Graduates Ltd., North Toronto Business and Professional Women’s Club Inc. and Monica Agnes Turner, Treaty Voice of Alberta, Anishnarvbekwek of Ontario Inc., Indian Association of Alberta, The Union of British Columbia Indian Chiefs, the Manitoba Indian Brotherhood Inc., The Union of New Brunswick Indians, the Brotherhood of the Northwest Territories, The Union of Nova Scotia Indians, The Union of Ontario Indians, The Federation of Saskatchewan Indians, The Indian Association of Quebec, The Yukon Native Brotherhood, and the National Indian Brotherhood.
The two cases were heard together before the Supreme Court.
Lavell was an Indian of the Wikwemikong Band of Ontario. She married a non-Indian in 1970. She consequently lost her Indian status pursuant to section 12(1)(b) of the Indian Act. She appealed the decision of the Registrar in charge of the Indian Register to the Federal Court.
Bédard was also a status Indian of the Six Nations Band of Ontario. She married a non-Indian in 1964. She lost her status and left the reserve until her separation from her husband in 1970. She subsequently returned to live in her mother’s house which was handed down to her by will. After a short period in which the Council allowed her to reside in her mother’s house, it passed a resolution requesting that she leave the reserve and that she dispose of the house. She asked the Supreme Court of Ontario for an injunction prohibiting the Six Nations Council from expelling her from the reserve.
Lavell and Bédard: The women were being subjected to discrimination in this case and the relevant section of the Indian Act should be rendered inoperative as it contravenes the Canadian Bill of Rights, which requires equality for both sexes before the law. They were supported in court by interveners representing actors in the women’s rights movement and Indian women’s rights organizations.
Canada: The Constitution is supreme and the Bill of Rights cannot override Parliament’s right to legislate over Indians as set out in s. 91 (24) of the Constitution Act, 1867.
Interveners: Every provincial Native organization, as well as the National Indian Brotherhood, supported the Attorney-General of Canada’s position.
Federal Court (1971): The appeal of the Registrar’s decision was rejected. The Bill of Rights did not render the relevant section of the Indian Act inoperative by taking into account the fact that Lavell had left the reserve nine years before her marriage.
Federal Court of Appeal (1972): The decision of the lower court was reversed. Section 12 of the Indian Act violated Lavell’s equality before the law and the Canadian Bill of Rights. The Crown appealed the Federal Court’s decision in 1973.
Supreme Court of Ontario (1972): Bédard’s hearing came after the Lavell decision by the Federal Court of Appeal. The Court followed Lavell and declared the resolutions passed by the Council to be inoperative. Thus, Bédard could continue to reside on the reserve. Since the Crown appealed the Lavell case, the Band was granted leave to appeal to the Supreme Court of Canada.
Fauteux. Martland, Judson, Ritchie, Pigeon wrote concurring reasons
The Canadian Bill of Rights does not have the effect of making s. 12 of the Indian Act inoperative. The Bill of Rights does not affect the Crown’s legislative authority with regard to Indians. Any change to this authority should be the object of a clear statute. Parliament’s management of Indians requires that it set structures and rules pertaining to Indian status, including s. 12 in this case.
Accepting argument that the Bill of Rights rendered the provision inoperative would mean that the whole Indian Act should be declared inoperative because it establishes different statuses for people living in Canada based on their race (Indian or non-Indian). It was never the intention of the Bill of Rights to suppress all federal legislation concerning Indians.
The term “equality before the law” should not be construed as having the same meaning as in the American Constitution. Rather, it should be read as equality in “the administration or application of the law by the law enforcement authorities, and no inequality in the administration and enforcement of the law, as between Indian men and women, flows as a necessary result of the application of s. 12 (1) (b) of the Indian Act.” (p., 1372-1373)
Aboriginal women of Canada
Since the Aboriginal women lost their case in the Supreme Court, the government did not amend the Act. This was perceived as an indication that the injustices that they were suffering would not be corrected in the justice system.
Aboriginal women in Canada opted for activism on the national and international stage in order to influence policy change. The Native Women’s Association of Canada (NWAC), which brings together provincial Native women’s organizations, was created in the same year as the Lavell verdict. NWAC has the goal of promoting the economic, social, cultural and political development of Native and Métis women in Canada (Native Women’s Association of Canada, 2007).
Positive reactions from organizations of status Indians
The various organizations of status Indians were pleased with the court’s decision. They maintained that since the court had the authority to strike down sections of the Indian Act without Parliamentary ratification, there was not much to prevent it from ultimately overturning the whole Act. Also, there was the argument that most of the bands, with their reserves at maximum occupancy and no financial resources to spare, would not be able to accommodate the massive influx of new members if s. 12(1) (b) was rendered inoperative.
There was a concern among the more traditionalist factions that their culture would be even more in danger of being diluted into the Canadian society if the criteria for the attribution of Indian status were relaxed.
Round two: the Lovelace case
The battle for the removal of s. 12(1)(b) of the Indian Act was again taken up, this time by Sandra Lovelace, an Aboriginal woman who had thereby lost her status. She presented her grievances to the New Brunswick Human Rights Commission. The Commission concluded that as a result of the Lavell decision, Aboriginal women in similar situations had used up all “domestic remedies.”
Hence, the Commission brought the case to the international level by introducing a complaint before the United Nations Human Rights Committee for breach of the obligations to which Canada is held pursuant to the International Covenant on Civil and Political Rights (ICCPR) (Bayefsky, 1982). Despite Canada’s many attempts to delay the decision, the Committee determined that the provisions of the Indian Act were discriminatory for Aboriginal women in cases like Ms. Lovelace’s, thereby putting the Canadian government in breach of its obligations.
The Canadian Charter of Rights and Freedoms
During the drafting of the Canadian Charter of Rights and Freedoms, women’s associations helped to revise the first draft of s. 15 to include the concept of “equality under the law” so that the substance of the law and not only its administration would be within the scope of the Charter (Hogg, 2008). After the Charter of Rights and Freedoms was entrenched in the Constitution in 1982, it became obvious that the Indian Act had to be modified in order to comply with the principles enunciated by the Charter, especially s. 15, which guarantees equal rights under the law and freedom from discrimination based on sex.
The difficulty lay in finding a new process for the attribution of Indian status since there was no consensus among the First Nations and Native leaders. After a lengthy consultation process, the Mulroney government adopted Bill C-31 in 1985 to ensure that status Indian women no longer lost their status when they married a non-Indian and that those who had lost their status, including the women’s children, could reclaim it.
A new form of discrimination and the McIvor case
The amendment introduced a new form of discrimination against Native women in s. 6(2), the “second generation cut-off.” A person with one Indian parent could keep his or her status but his or her children would not be entitled to Indian status. This provision mainly concerned Native women who regained their status in 1985 and their children.
This rule applied until June 2009, when the Court of Appeal for British Columbia declared this provision of the Indian Act to be an unjustifiable discrimination, without force and effect, in the McIvor case. The Court suspended its ruling for one year to give the Department of Justice sufficient time to make the appropriate amendments. The Attorney-General of Canada declared that he would not appeal the ruling. Native women’s rights associations applauded the decision.
The federal government held consultations across Canada in 2009 concerning the registration provisions of the Indian Act in order to conform to the McIvor decision. During these sessions, national Aboriginal groups, such as the Assembly of First Nations (AFN) and NWAC, and their regional counterparts were asked for their input concerning potential amendments to the Indian registration process (INAC, 2010).
In March 2010, Chuck Strahl, Minister of Indian and Northern Affairs, introduced Bill C-3, the Gender Equity in Indian Registration Act, in Parliament. Under the amended Indian Act, the grandchildren of Indian women who lost their status before 1951 because they married a non-Indian become eligible for registration. They will acquire status under s. 6 (2), meaning that these women’s great-grandchildren will not be entitled to status if the other parent is not Indian.
Aboriginal women’s groups were not satisfied with this solution as they felt that gender discrimination towards them would continue. For example, the grandchildren of Aboriginal men are registered under s. 6(1), and therefore have full Indian status (QNW, 2010). Quebec Native Women, a regional organization affiliated with NWAC, asked for amendments to the proposal to end discrimination towards Aboriginal women’s descendants by ending the categorization of Indian status. They are supported in their proceedings by the Liberal Party of Canada, the Bloc Québécois and Amnesty International.
McIvor v. Canada (Registrar, Indian and Northern Affairs), 2009 BCCA 153
Bill C-3, Gender Equity in Indian Registration Act, 3rd session, 40th Parliament, 2010
McIvor v. Canada (Registrar, Indian and Northern Affairs), 2009 BCCA 153
Sandra Lovelace v. Canada, Communication No. 24/1977: Canada 30/07/81, U.N. Doc. Supp. Nº 40 (A/36/40) p. 166 (1981)
Bayefsky Anne. 1982. The Human Rights Committee and the Case of Sandra Lovelace, in Can. Yearbook of International law, Vol. 20 : 244-265. Vancouver: University of British Columbia Press.
Hogg Peter W. 2008. Constitutional Law of Canada, Student Edition 2008. Scarborough: Thomson Canada Limited.
Aboriginal Affaires and Northern Development Canada. 2010. Gender Equity in Indian Registration Act. Online. http://www.aadnc-aandc.gc.ca/eng/. Accessed July 24, 2013.
Kulchyski Peter. 1994. Unjust Relations: Aboriginal Rights in Canadian Courts. Toronto : Oxford University Press.
Leslie John. 2002. The Indian Act: An Historical Perspective, Canadian Parliamentary Review 25 (2).
Native Women’s Association of Canada. 2009. About NWAC. Online. http://www.nwac.ca/about-nwac. Accessed July 8, 2009.
Quebec Native Women. 2010. “Indian” Status Issue: QNW Demands Amendments to Bill C-3: Aboriginal Women Deserve Better. Online. http://www.faq-qnw.org/old/documents/June3billC-3.pdf. Accessed June 16, 2010