McIvor v. Canada (Registrar of Indian and Northern Affairs)

Court of Appeal for British Columbia – 2009 BCCA 153

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British Columbia DiscriminationIndian ActStatus

Issue

Do the provisions of section 6 of the Indian Act violate the Canadian Charter of Rights and Freedoms because of discrimination based on sex and marital status, and can Grismer’s children be entitled to Indian status even if their paternal grandfather and mother are non-Indian?

Decision

Some dispositions of section 6 are discriminatory and violate the Canadian Charter of Rights and Freedoms. Parliament has one year to redress the situation (unanimous decision).

Parties

Between: Registrar of Indian and Northern Affairs Canada and Canada

And: Sharon Donna McIvor and Charles Jacob Grismer

Interveners: Native Women’s Association of Canada, Congress of Aboriginal Peoples, First Nations Leadership Council, West Moberly First Nations, T’Sou-ke Nation, Grand Council of the Waban-Aki Nation, Band Council of the Abenakis of Odanak, Band Council of the Abenakis of Wôlinak and Aboriginal Legal Services of Toronto

Facts

In 1951, the Indian Act was amended, and it set new rules for the attribution of Indian status. In short, an Indian woman would lose her status if she married a non-Indian, and her children were not entitled to the status. This was called the “Marrying Out Rule.” An Indian man could keep his status if he married a non-Indian, and his wife gained the status. Also, children lost their status at 21 if both their mother and paternal grandmother had gained their status by marriage, under the “Double Mother Rule.” There were also rules for illegitimate children who were entitled to the status if both of their parents were Indian. If only a child’s mother was Indian, he could still be excluded from the Band.

In 1985, with no consensus among the First Nations and their various organizations, the federal government amended the Indian Act with Bill C-31. Sect. 6 (1) (a) preserves the status of those who had held it before 1985. Section 6 (1) (c) gives the status back to those who had lost it before 1985 due to the Marrying Out Rule and the Double Mother Rule. Section 6 (2) is known as the “Second Generation Cut-off,” meaning that the children of those who gained back their status in 1985 cannot pass it on to their own children, except if they are born out of two Indian parents.

In September 1985, Sharon McIvor, a Native woman from Lower Nicola, British Columbia, who had never registered and who had married a non-Indian, applied for her Indian status for herself, based on section 6 (1) (c), and for her children, including Charles Jacob Grismer, under section 6 (2). Both of her parents were entitled to the status before 1985 because both were born out of wedlock to an Indian mother and a non-Indian father. They never applied for it since they thought that being an illegitimate child with a non-Indian father excluded them from obtaining the status. They might have had difficulty in doing so; if their father had been Indian and their mother non-Indian, they would not have.

The registrar granted status to McIvor according to paragraph 6(2), and refused it therefore to her kids. McIvor challenged the decision. In July 2006, following new genealogy research, the registrar admits that McIvor was entitled to get 6(1) status, and Grismer could get 6(2). McIvor then challenged the validity of section 6(2), stating that had she been a man, she could have passed her Indian status to her husband when marrying him before 1985, and her kids would have become 6(1).

Arguments

McIvor and Grismer: The determination of Indian status under section 6 is still discriminatory because it is based on the regime in place before 1985. By continuing this regime, the federal government is discriminating against the same group who did not have the right to Indian status before the passing of Bill C-31 because of their sex and marital status. This violates section 15 of the Charter, which guarantees equality before the law and protection from discrimination based on several grounds, including sex and marital status.

The Registrar and Canada: The Charter cannot be applied retrospectively to legislation no longer in force: the federal government is not required to course-correct all of the negative effects of discriminatory legislation in place before the enactment of the Charter. The federal government fulfilled its constitutional obligation by putting in place a non-discriminatory regime in 1985 where Indian status is no longer determined on the basis of sex and marital status. By reinstating Indian status to those who had lost it, the government did more than its obligation required. Also, if the Court found that sections 6 (1) and (2) are discriminatory against McIvor and Grismer, this differential treatment is justified in a free and democratic society.

Decision of the lower courts

British Columbia Supreme Court II (2007): Grismer should have the right to pass on the Indian status to his children even though his father and his wife are non-Indian because sect. 6 of the Indian Act violates section 15 of the Charter, thus discriminating against the plaintiff based on his mother’s sex and marital status.

Reasons for Judgement

Jury

Newbury, Tysoe, Groberman

Reason

The source of the discrimination against McIvor and Grismer is an on-going status (McIvor’s sex) rather than a distinctive event (McIvor’s marriage to a non-Indian). Section 15 can be used to challenge a law (in this case the Indian Act) which, by its effect, created discrimination based on an on-going status and still does to this day.

The “Benefit of the Law” at issue is the right for a parent to pass on Indian status to his children and grandchildren, which has a cultural importance because it is the recognition of a person as an Indian. Secondly, the treatment of Grismer as part of a group of people born before the amendment of 1985 to Indian women married to non-Indian men to the treatment of people born before the same amendment to Indian men married to non-Indian women. By looking at the Indian Act, it becomes obvious that Grismer is treated less advantageously because, in contrast to those in the second group, he cannot pass Indian status on to his children born out of his union with a non-Indian woman. This differential treatment is based on his mother’s gender and he himself benefits from passing on the status to his children, as does McIvor through him. The treatment under the Indian Act concerning the Indian status of McIvor and Grismer is discriminatory.

For the government, there is one way to justify discriminatory legislation: it has to be reasonable and justified in a free and democratic society under section 1 of the Charter. One of the goals of Bill C-31 was to preserve the rights of those who acquired Indian status and band membership under the former Indian Act, which is a pressing and substantial objective since people would have deprived of their status. This was the case for non-Indian women who married Indian men and for their children born before 1985. Was refusing section 6 (1) status to those in the same situation as Grismer a pressing and substantial enough objective? The question is answered in the affirmative since C-31 was adopted after thorough consultations and discussion with leaders and members of First Nations, and there was some apprehension on their part because the rapid increase in people entitled to the status would flood their resources, both financial and material, and water down their identity. Since the intended goal was to establish a new non-discriminatory regime and not to expand the right to Indian status, the federal government ruled that having only one Indian grandparent would not be enough to be entitled to that status. By giving section 6 (1) status to Grismer and others in the same situation, there would be even more abnormalities under the Indian Act.

There is a rational connection between C-31 and its objectives. However, C-31 does not qualify as a minimal impairment. If we look at the comparator group, the group composed of children born before 1985 to an Indian father and a non-Indian mother, their situation improved. Those under the Double Mother Rule (an Indian father, a non-Indian mother and a non-Indian paternal grandmother) had the status only until the age of 21 and could not transmit it to their own children. After the advent of C-31, they held the status under section 6 (1) and could now pass it on to their children under section 6 (2). The gap between this group and those in Grismer’s situation is widened and there is no evidence to justify this. Even if the amendment passes the proportionality test, it is still an unjustifiable and unreasonable discrimination in a free and democratic society.

The trial judge erred in the remedy she granted and in the extent of the Charter violations since she found that every person who could prove that one of their ancestors lost their status should be entitled to Indian status under section 6 (1). It was not the judge’s role to completely overhaul the Indian Act’s mechanisms to determine Indian status; that is the responsibility of Parliament. Since the legislation had been in force for over twenty-four years and an amendment by a court would have serious implications which only government, with its resources, and not the judicial system, would be able to study and determine the best policy to adopt in this particular situation, it was not the Court’s place to grant Grismer a better status. Only sections 6 (1) (a) and 6 (1) (c) provisions concerning the change in the Double Mother Rule were in violation of the Charter. Both are to be of no force and effect. The judgement was to be suspended for one year to allow Parliament to amend the Indian Act in order to make it constitutional.

Impact

Native women’s associations rejoiced over the decision. They hoped that the federal government would organize a thorough consultation process with Aboriginal communities, leaders and women’s associations to draft a new mechanism to determine the attribution of Indian status and allocate a special fund to help the communities to deal with the arrival of new members (Quebec Native Women, 2009).

McIvor was able to challenge the Indian Act in B.C. Supreme Court because of the assistance provided by the Court Challenges Program, which allocated public funds to her. This program, instituted in 1978, started by helping ordinary citizens by giving them funding to build test cases that sanctioned their linguistic rights. With the arrival of the Charter in 1982, the program’s objectives were expanded to include both language rights and equality rights. Mulroney cut the program in 1992, but it was reinstated under Chretien’s Liberal administration two years later. It was highly beneficial to Aboriginal women, who were victims of constant discrimination under the federal legislation and policies, and challenged them in Canadian courts more than 35 times (Standing Committee on the Status of Women, 2008). Unfortunately, the Harper administration cut the program in 2007 and different organizations, such as the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN), held fundraisers to help pay McIvor’s legal costs, which amounted to $120,000 (Braham, 2007).

On June 2, the Minister of Indian and Northern Affairs, Chuck Strahl, declared that the federal government would not appeal the Court’s decision. McIvor filed an application for leave to appeal to the Supreme Court on June 11, 2009. The Supreme Court decided not to hear the appeal, and the Court of Appeal’s decision still stands today (Supreme Court of Canada, 2009).

Reform

The federal government held consultations across Canada in 2009 regarding the registration provisions of the Indian Act in order to comply with the McIvor decision. During these sessions, national Aboriginal groups such as the AFN or NWAC and their regional counterparts were asked for their input concerning potential amendments to the Indian registration process (INAC, 2010).

In March 2010, Minister of Indian and Northern Affairs Chuck Strahl introduced Bill C-3, the Gender Equity in Indian Registration Act, in Parliament. Under the amended Indian Act, 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 section 6 (2), meaning that these women’s great-grandchildren will not be entitled to status if the other parent is not Indian (Gender Equity in Indian Registration Act, sect. 2 (3)).

Aboriginal women’s groups were not satisfied with this solution as they felt that gender discrimination would continue to affect them. For example, the grandchildren of Aboriginal men are registered under section 6 (1), and therefore have full Indian status (QNW, 2010a). Quebec Native Women, a regional organization affiliated with NWAC, asked for amendments to the proposal to end discrimination against 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 (Ibid).