IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
McIvor v. The Registrar, Indian and Northern Affairs
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2007 BCSC 827 |
Date: 20070608
Docket: A941142
Registry: Vancouver
Between:
Sharon Donna McIvor, Charles Jacob Grismer
Plaintiffs
And
The Registrar, Indian and Northern
Affairs
The Attorney General of
Defendants
Before: The Honourable Madam Justice Ross
Reasons for Judgment
| Counsel for the Plaintiffs |
Robert W. Grant
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| Counsel for the Defendants |
Sarah P. Pike
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Date and Place of Trial: |
October 16 to November 10, 2006 |
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Vancouver, B.C. |
TABLE OF CONTENTS
I. INTRODUCTION ..............................................................................................................................Page 3
II. LEGISLATIVE HISTORY .......................................................................................................................... 6
Early Legislation ........................................................................................................................... 6
Early Challenges ........................................................................................................................... 19
Movements for Reform ................................................................................................................. 20
Process Leading to Bill C-31 ...................................................................................................... 25
The 1985 Act Registration Provisions ........................................................................................ 38
III. THE PLAINTIFFS AND THE PROCEEDINGS ..........................................................................................44
Genealogical Background .............................................................................................................44
Proceedings Regarding Registration ..........................................................................................47
These Proceedings ........................................................................................................................49
IV. IMPORTANCE OF REGISTRATION ..........................................................................................................55
V. RETROSPECTIVITY ...................................................................................................................................64
VI. SECTION 15 .................................................................................................................................................71
Introduction ..................................................................................................................................... 71
Benefit of the Law .......................................................................................................................... 76
Were the Plaintiffs Denied a Benefit that was
Granted to a Comparator Group? .......................................................................................... 85
Is the Differential Treatment Based on an
Enumerated or Analogous Ground? .......................................................................................94
Does the Difference in Treatment Amount to
Substantive Discrimination? ................................................................................................. 106
Does the Distinction Perpetuate Historic Disadvantage? ..................................................... .107
Does the Ground of Discrimination Correspond to
the Actual Needs, Capacity or Circumstances
of the Claimants? .................................................................................................................... 110
Ameliorative Purpose or Effect ....................................................................................................112
Nature and Scope of the Interest Affected .............................................................................. . 115
Conclusion Regarding Discrimination ........................................................................................ 120
VII. IS THE INFRINGEMENT JUSTIFIED UNDER
S. 1 OF THE CHARTER? ............................................................................................................... 120
Introduction .....................................................................................................................................120
Level of Deference ....................................................................................................................... 122
Pressing and Substantial Objective .............................................................................................125
Proportionality Analysis ................................................................................................................ 135
Rational Connection .................................................................................................................135
Minimal Impairment ...................................................................................................................137
Is the Impact Disproportionate ................................................................................................140
VIII. REMEDY .......................................................................................................................................................142
I. INTRODUCTION
[1] In this action the plaintiffs, Sharon Donna McIvor (“Sharon McIvor”), and her son, Charles Jacob Grismer (“Jacob Grismer”), challenge the constitutional validity of ss. 6(1) and 6(2) of the Indian Act, R.S.C. 1985, c. I-5 (the “1985 Act”). These provisions deal with entitlement to registration as an Indian, or status as it is frequently termed. The plaintiffs do not challenge any other provisions of the 1985 Act, and in particular, do not challenge the provisions relating to entitlement to membership in a band.
[2] Under previous versions of the Indian Act, the concept of status was linked to band membership and the entitlement to live on reserves. In addition, under previous versions of the Indian Act, when an Indian woman married a non-Indian man, she lost her status as an Indian and her children were not entitled to be registered as Indians. By contrast, when an Indian man married a non-Indian woman, both his wife and his children were entitled to registration and all that registration entailed.
[3] For years there were calls for an end to this discrimination. Eventually in 1985, the government introduced and parliament subsequently passed Bill C-31, An Act to Amend the Indian Act, S.C. 1985, c. 27 (“Bill C-31”). Part of the purpose of the legislation was to eliminate what was acknowledged to be discrimination on the basis of sex from the criteria for registration. Another significant aspect of the amendments introduced as part of Bill C-31 was that for the first time the issue of eligibility for registration or status was separated from the issue of membership in a band.
[4] The plaintiffs submit that this remedial effort was incomplete and that the registration provisions introduced in Bill C-31 that form the basis for registration in the 1985 Act continue to discriminate contrary to ss. 15 and 28 of the Canadian Charter of Rights and Freedoms (the “Charter”). The plaintiffs submit that the registration provisions continue to prefer descendents who trace their Indian ancestry along the paternal line over those who trace their Indian ancestry along the maternal line. The plaintiffs submit further that the provisions continue to prefer male Indians who married non-Indians and their descendents, over female Indians who married non-Indians and their descendents.
[5] In this action the plaintiffs seek the following relief:
1. A declaration that section 6 of the 1985 Act violates section 15(1) of the Charter insofar as it discriminates between matrilineal descendants and patrilineal descendants born prior to April 17, 1985, in the conferring of Indian status.
2. A declaration that section 6 of the 1985 Act violates section 15(1) of the Charter insofar as it discriminates between descendants born prior to April 17, 1985, of Indian women who had married non-Indian men, and descendants of Indian men who married non-Indian women.
3. A declaration that section 6 of the 1985 Act violates section 15(1) of the Charter insofar as it discriminates between descendants born prior to April 17, 1985, because they or their ancestors were born out of wedlock.
4. An order that the following words be read in to section 6(1)(a) of the 1985 Act: “or was born prior to April 17, 1985, and was a direct descendant of such a person”.
5. In the alternative:
An order that for the purposes of section 6(1)(a) of the 1985 Act, section 11(1)(c) and (d) of the Indian Act, S.C. 1951, c. 29, as amended (the “1951 Act”), in force immediately prior to April 17, 1985 shall be read as though the words “male” and “legitimate” were omitted.
And a further order that for the purposes of section 6(1)(a) of the 1985 Act, s. 12(1)(b) of the 1951 Act in force immediately prior to April 17, 1985, shall be read as though it had no force and effect.
6. A declaration that the plaintiffs are entitled to register under s. 6(1)(a) of the 1985 Act.
7. …
8. An order that the relief granted in this proceeding applies exclusively to registration under section 6 of the 1985 Act and does not alter sections 11 and 12 of the 1985 Act or any other provision defining entitlement to Band membership.
…
[6] The defendants’ response to the plaintiffs’ claims can be organized around three principal themes:
(a) granting the relief sought by the plaintiffs would constitute an impermissible retroactive or retrospective application of the Charter in that it would require the court to apply the Charter to pre-1985 legislation and to amend repealed provisions of prior versions of the Indian Act;
(b) the plaintiffs suffered no injury. The only difference between the plaintiffs and Indians entitled to registration pursuant to s. 6(1)(a) of the 1985 Act is in relation to the status of their children. There is no right to transmit Indian status, which is purely a matter of statute. Accordingly, there has been no denial of the plaintiffs’ rights; and
(c) any infringement of the plaintiffs’ rights is justified in light of the broad objectives of the 1985 amendments to the Indian Act which was a policy decision, made after extensive consultation, balancing the interests of all affected and which is entitled to deference.
[7] For the reasons that follow, I have concluded that the registration provisions contained in s. 6 of the 1985 Act discriminate on the basis of sex and marital status contrary to ss. 15 and 28 of the Charter and that such discrimination has not been justified by the government. The following conclusions form the crux of my decision:
(a) The plaintiffs’ claim, properly understood, requires neither a retroactive nor a retrospective application of the Charter. It is rather an application of the Charter to the present registration provisions of the Indian Act.
(b) Although the concept “Indian” is a creation of government, it has developed into a powerful source of cultural identity for the individual and the Aboriginal community. Like citizenship, both parents and children have an interest in this intangible aspect of Indian status. In particular, parents have an interest in the transmission of this cultural identity to their children.
(c) The registration provisions of the 1985 Act did not eliminate discrimination. The registration provisions contained in s. 6 continue to prefer descendents who trace their Indian ancestry along the paternal line over those who trace their Indian ancestry along the maternal line and continue to prefer male Indians who married non-Indians and their descendents, over female Indians who married non-Indians and their descendents. This preference constitutes discrimination on the basis of sex and marital status contrary to ss. 15 and 28 of the Charter.
(d) This discrimination has not been justified by the government pursuant to s. 1 of the Charter. In that regard, as part of the 1985 amendments, the government elected to sever the relationship between status and band membership. Status is now purely a matter between the individual and the state. There are no competing interests. No pressing and substantial objective has been identified with respect to the discriminatory provisions in the registration scheme.
II. LEGISLATIVE HISTORY
Early Legislation
[8] The concept “Indian” is a creation of statute. Prior to the arrival of Europeans, the Aboriginal peoples who inhabited the region that would become Canada had their own forms of social organization with their own names by which to identify their social groups. Fundamental aspects of these forms of social organization included rules for the identification of members of the group, the transmission of membership status in the event of marriage and the transmission of membership status to descendants. These rules were diverse and often quite different from the forms of social organization of the colonists. For example, some Aboriginal societies were matrilineal. Among the Iroquois, descent and inheritance were transmitted through the female line. Post-marital residence was matrilocal: see Indian Women and the Indian Act, Standing Committee of Indian Affairs and Northern Development (the “Standing Committee”), September 13, 1982, testimony of Pauline Harper, President, Indian Rights for Indian Women at p. 4:33. In the Kwawkewith Nation of the west coast, inheritance followed a matriarchal line. A child took her mother’s family name and inheritance: see Standing Committee, September 10, 1982, testimony of Donna Tyndell at p. 3:37.
[9] In many Aboriginal societies woman exercised considerable political power. This too stood in contrast to the situation of women in the colonial societies at the time. For example, the Iroquois had a socio-political structure that took the form of a confederacy held together by a socio-political system of clans headed by women in a true matrilineal political and familial system. This clan system, which was inherently a matriarchal system of family government and political organization, was the foundation upon which a political system was built that created a democratic structure of government: see Standing Committee, September 13, 1982, testimony of Mary Two-Axe Earley, President Quebec Equal Rights of Indian Women at pg. 4:49; Perspectives and Realities, Vol. 4, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Supply and Services Canada, 1996) (the “Royal Commission Report”); and Sayers, MacDonald, Fiske, Newell, George and Cornett, First Nations Women, Governance and the Indian Act: A Collection of Policy Research Reports (Status of Women Canada’s Policy Research Fund, November, 2001).
[10] The report, Native Women and the Constitution: background paper presented to the Women and the Constitutional Conference by the Native Women’s Association of Canada, September 6, 1980, noted at p. 3:
Native people are the descendants of the original people of this land. Before the Europeans arrived, Native people called themselves by their own names using their own languages. Native people are not the descendants of one nation but rather of hundreds of sovereign nations that lived on this land before the Europeans. When treaties were signed, they were signed by one nation entering into agreements with another nation. But as history has shown, treaties were not honoured in this way. Instead, the federal government developed an attitude of paternalism and assimilation towards Native people, legislating a process of defining who is an Indian and who is not, and confining Native people to specific sections of land.
[11] One of the profound developments introduced by colonialism was the creation of the concept of “Indian” which was the term created by the colonists to describe Aboriginal persons. Following settlement in Upper and Lower Canada and the creation of treaties with Aboriginal peoples, legislation was passed in relation to the Aboriginal peoples that the colonial powers had named “Indians”. The first such statute was An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury, S.C.1850, c.74 (the “1850 Act”). The 1850 Act made reference to Indian and any person inter-married with any Indian.
[12] Subsequent legislation contained evolving definitions of the term “Indian”. With these definitions came situations of loss of status for Aboriginal women and their children. The legislation mirrored the colonial societies’ attitudes toward women. These attitudes were embodied in both Napoleonic and British common law:
Both Napoleonic and British common law, from which Canadian law derived, deprived married woman of legal personhood, independence, and equality. The traditional status of married women at law is summarized in Blackstone’s famous aphorisms: “Husband and wife are one person and the husband is that one”, and “The very being or legal existence of the woman is suspended during marriage.”
Upon marriage, a woman’s property customarily passed to her husband. Monies she earned, gifts she was given, or property she inherited all belonged to her husband. A married woman had no right to contract or to make a will, nor could she sue or be sued independently.
Marriage also resulted in a woman’s physical person and her sexuality becoming her husband’s property. He had the right to physically “correct” her, to rape her, to control her physical movement, and to determine her domicile and place of residence.
Children were also entirely in the control of the husband, as he was the sole legal guardian of them, with the right to make all decisions regarding their care, discipline, and education.
Married women assumed the names and nationalities of their husbands, and lost their own. The husband was responsible for any illegal actions of his wife. She could not testify in court against her husband, nor could she sue him for actions against her.
A married woman could not divorce and only in extreme circumstances could she live apart from her husband. Her only basic legal right was to have her husband supply the necessities of life.
(Day, Shelagh, “The Charter and Family Law” in E. Sloss ed., Family in Canada: New Directions (Ottawa: Canadian Advisory Council on the Status of Women, 1985) at p. 28 [references omitted]).
[13] The involuntary loss of Indian status by Aboriginal women and children began with the passage in 1857 of An Act to Encourage the gradual Civilization of Indian Tribes in the Province and to amend the Laws respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26 (the “1857 Act”). The preamble of the 1857 Act identifies the assimilation of the Indian people as the purpose of the enactment:
WHEREAS it is desirable to encourage the progress of Civilization among the Indian Tribes in this Province, and the gradual removal of all legal distinctions between them and Her Majesty’s other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such Individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:
[14] Section 1 of the 1857 Act provided that the 1850 Act would apply to:
Indians or persons of Indian blood or intermarried with Indians, who shall be acknowledged as members of Indian Tribes or Bands residing upon lands which have never been surrendered to the Crown (or which having been so surrendered have been set apart or shall then be reserved for the use of any Tribe or Band of Indians in common) and who shall themselves reside upon such lands, and shall not have been exempted from the operation of the said section, under the provisions of this Act; and such persons and such persons only shall be deemed Indians within the meaning of any provision of the said Act or of any other Act or Law in force in any part of this Province by which any legal distinction is made between the rights and liabilities of Indians and those of Her Majesty’s other Canadian Subjects. (Emphasis added)
By this provision, the government assumed control over the determination of who was Indian.
[15] The 1857 Act provided for the enfranchisement of Indian men over the age of twenty-one who met certain specified criteria. Upon enfranchisement, the Indian men ceased to be Indians. So too did their wives and children.
[16]
One
consequence of such legislation was the disruption of Aboriginal culture through
the imposition of colonial concepts of social organization. Madam Justice
L’Heureux-Dube described this in Corbiere v.
Legislation depriving Aboriginal women of Indian status has a long history. The involuntary loss of status by Aboriginal women and children began in Upper and Lower Canada with the passage of An Act to encourage the gradual Civilization of the Indian Tribes in the Province, and to amend the Laws respecting Indians, S. Prov. C. 1857, 20 Vict., c. 26. A woman whose husband “enfranchised” had her status removed along with his. This legislation introduced patriarchal concepts into many Aboriginal societies which did not exist before: see Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol. 1, The Justice Systems and Aboriginal People, at pp. 476-79. As the Royal Commission stated in Perspectives and Realities, supra, at p. 26:
In the pre-Confederation period, concepts were introduced that were foreign to Aboriginal communities and that, wittingly or unwittingly, undermined Aboriginal cultural values. In many cases, the legislation displaced the natural, community-based and self-identification approach to determining membership – which included descent, marriage, residency, adoption and simple voluntary association with a particular group – and thus disrupted complex and interrelated social, economic and kinship structures. Patrilineal descent of the type embodied in the Gradual Civilization Act, for example, was the least common principle of descent in Aboriginal societies, but through these laws, it became predominant. From this perspective, the Gradual Civilization Act was an exercise in government control in deciding who was and was not an Indian.
[17]
With
Confederation, s. 91(24) of the Constitution Act, 1867, 30-31
Vict., c.
3 (
Firstly. All persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and their descendants;
Secondly. All persons residing among such Indians, whose parents where or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and the descendants of all such persons; And
Thirdly. All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants.
[18] Section 15 stated that only persons who met the statutory criteria were entitled to hold, use, or enjoy lands and property belonging to or appropriated to the use of bodies of Indians, tribes, or bands.
[19] From that time forward, the Government of Canada has utilized the concept of the status Indian in relation to the exercise of its s. 91(24) powers.
[20] The 1868 Act was amended in 1869 by An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42, S.C. 1869, c. 6. (32-33 Vict.) (the “1869 Act”). The 1869 Act amended the definition of Indian in s. 15 of the 1868 Act by adding a provision that any Indian woman marrying a non-Indian man lost her Indian identity. So too did the children of the marriage. The 1869 Act also provided that when an Indian woman married an Indian man of a different tribe or band, she ceased to be a member of her own band or tribe and became a member of her husband’s band or tribe. The children of the marriage became members of only the father’s tribe or band.
[21] The official explanation for the adoption of this policy was a concern about control over reserve lands and the need to prevent non-Indian men from gaining access to them. For example, the following correspondence is quoted in the Royal Commission Report at p. 27:
Thus, in 1869 the secretary of state wrote to the Mohawks of Kahnawake regarding the marrying out provisions of the new legislation, stressing that the goal was ‘preventing men not of Indian Blood having by marrying Indian women either through their Wives or Children any pretext for Settling on Indian lands.
And see Weaver, S., Report on Archival Research Regarding Indian Women & Status 1868 – 1869 (University of Waterloo, 1971).
[22] The discriminatory treatment of Aboriginal women thus introduced into the legislation was summarized as follows in the Royal Commission Report at p. 28:
In the relatively short period between the 1850 Lower Canada legislation and the 1869 Gradual Enfranchisement Act, it seems apparent that Indian women were singled out for discriminatory treatment under a policy that made their identity as Indian people increasingly dependent on the identity of their husbands. They were subject to rules that applied only to them as women and that can be summarized as follows: they could not vote in band elections; if they married an Indian man from another band, they lost membership in their home communities; if they married out by wedding a non-Indian man, they lost Indian status, membership in their home communities, and the right to transmit Indian status to the children of that marriage; if they married an Indian man who became enfranchised, they lost status, membership, treaty payments and related rights and the right to inherit the enfranchised husband’s lands when he died. Despite strong objections, these discriminatory provisions were carried forward into the first Indian Act in 1876.
[23] It is noteworthy that already objections were being made to such provisions by Aboriginal groups. For example, the Royal Commission Report cites the following in a footnote to the above quote:
... In 1872, the Grand Council of Ontario and Quebec Indians (founded in 1870) sent the minister in Ottawa a strong letter that contained the following passage:
They [the members of the Grand Council] also desire amendments to Sec. 6 of the Act of [18]69 so that Indian women may have the privilege of marrying when and whom they please, without subjecting themselves to exclusion or expulsion from their tribes and the consequent loss of property and rights they may have by virtue of their being members of any particular tribe. (NAC RG10, Red Series, Vol. 1934, file 3541)
[24] The definition of Indian was modified in the Indian Act, S.C. 1876, c. 18 (39 Vict.) (the “1876 Act”). Pursuant to s. 3 of the 1876 Act the term Indian now meant:
(a) any male person of Indian blood reputed to belong to a particular band;
(b) the child of such person; and
(c) any woman who is or was lawfully married to such person.
[25] The 1876 Act continued the provision that any Indian woman marrying a non-Indian lost her Indian status and her band membership. The 1876 Act also continued the provision that an Indian woman marrying an Indian man who belonged to a different band or tribe would lose the membership in her band and become a member of her husband’s band or tribe. These provisions continued, essentially unchanged, until the enactment of the Indian Act, S.C. 1951 c. 29 (the “1951 Act”).
[26] By virtue of these provisions, an Indian woman who married a man who was not a status Indian lost her Indian status. Her children did not acquire Indian status. By contrast, an Indian man who married a woman who was not a status Indian suffered no such fate. He retained his Indian status. Moreover, both his wife and any children of the union acquired Indian status.
[27] The 1951 Act created the Indian Register in which the name of everyone registered as an Indian was recorded. It also created the position of the Registrar, an officer of the Crown who was in charge of the Indian Register and who determined entitlement to registration in the Indian Register under the 1951 Act. The Indian Register consisted of Band Lists and General Lists. Those persons who were members of bands and entitled to be registered as an Indian were entered in the Band List for that band. The General List contained those people entitled to be registered as an Indian, but with no band affiliation.
[28] Section 2(1)(g) of the 1951 Act defined Indian as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. Those persons entitled to be registered pursuant to the 1951 Act were defined in ss. 11 and 12 which provided:
11. Subject to section twelve, a person is entitled to be registered if that person
(a) on the twenty-sixth day of May, eighteen hundred and seventy-four, was, for the purposes of An Act providing for the organization of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, chapter forty-two of the statues of 1868, as amended by section six of chapter six of the statutes of 1869, and section eight of the chapter twenty-one of the statutes of 1874, considered to be entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada;
(b) is a member of a band
(i) for whose use and benefit, in common, lands have been set apart or since the twenty-sixth day of May, eighteen hundred and seventy-four have been agreed by treaty to be set apart, or
(ii) that has been declared by the Governor in Council to be a band for the purposes of this Act;
(c) is a male person who is a direct descendant in the male line of a male person described in paragraph (a) or (b);
(d) is the legitimate child of
(i) a male person described in paragraph (a) or (b), or
(ii) a persons described in paragraph (c);
(e) is the illegitimate child of a female person described in paragraph (a), (b) or (d), unless the Registrar is satisfied that the father of the child was not an Indian and the Registrar has declared that the child is not entitled to be registered; or
(f) is the wife or widow of a person who is entitled to be registered by virtue of paragraph (a), (b), (c), (d) or (e).
12(1) The following persons are not entitled to be registered, namely,
(a) a person who
(i) has received or has been allotted half-breed lands or money scrip,
(ii) is a descendant of a person described in sub-paragraph (i),
(iii) is enfranchised, or
(iv) is a person born of a marriage entered into after the coming into force of this Act and has attained the age of twenty-one years, whose mother and whose father’s mother are not persons described in paragraph (a), (b), (d), or entitled to be registered by virtue of paragraph (e) of section eleven, unless being a woman, that person is the wife or widow of a person described in section eleven, and
(b) a woman who is married to a person who is not an Indian.
[29] Pursuant to s. 14 of the 1951 Act, a woman who was a member of a band ceased to be a member of that band if she married a person who was not a member of the band. If she married a man who was a member of another band, she became a member of his band.
[30] Sections 11(e) and 12 of the 1951 Act were amended by An Act to amend the Indian Act, S.C. 1956, c. 40 (the “1956 Act”) as follows:
3(1) Paragraph (e) of section 11 of the said Act is repealed and the following substituted therefor:
“(e) is the illegitimate child of a female person described in paragraph (1), (b) or (d); or”.
(2) Section 12 of the said Act is amended by adding thereto, immediately after subsection (1) thereof, the following subsection:
“(1a) The addition to a Band List of the name of an illegitimate child described in paragraph (e) of section 11 may be protested at any time within twelve months after the addition, and if upon the protest it is decided that the father of the child was not an Indian, the child is not entitled to be registered under paragraph (e) of section 11.”
(3) This section applies only to persons born after the coming into force of this Act.
4 Paragraph (b) of subsection (1) of section 12 of the said Act is repealed and the following substituted therefor:
“(b) a woman who married a person who is not an Indian, unless that woman is subsequently the wife or widow of a person described in section 11.”
[31] The registration provisions contained in ss. 11 and 12 of the 1951 Act as amended by the 1956 Act remained virtually unchanged until the 1985 Act came into force.
[32] Opposition to these provisions however, continued to be expressed. For example, the final report of the Royal Commission on the Status of Women (Government of Canada, 1970) at para. 106 contained a recommendation that the Indian Act be amended “to allow an Indian woman upon marriage to a non-Indian to (a) retain her Indian status; and (b) transmit her Indian status to her children”.
[33] The intention of the legislature with respect to the registration provisions was addressed in Martin v. Chapman, [1983] 1 S.C.R. 365, a decision dealing with the eligibility for registration of the illegitimate child of an Indian father. Madam Justice Wilson, writing for the majority, described this intent as follows at 370:
It seems to me that the one thing which clearly emerges from ss. 11 and 12 of the Act is that Indian status depends on proof of descent through the Indian male line.
[34] In summary, in relation to the matters at issue in this litigation, the following are the important developments in the history of the legislation leading up to the 1985 Act:
(a) the government created the concept of Indian and then used it as a general concept in relation to peoples of the First Nations in substitution for the First Nations’ own identifications;
(b) the government endowed the concept of Indian with great significance in including in relation to such matters as band membership, the right to membership in communities, the right to live on reserve lands, and the right to treaty payment;
(c) the government assumed exclusive control over the identification of who was and was not entitled to be classified as an Indian; and
(d) the rules created by the government and embodied in the successive versions of the legislation, favoured descent through the male line and discriminated against women and those who traced their descent through the maternal line. In particular, if an Indian woman married a non-Indian man, she lost her status and her children were not entitled to be classified as Indian. However, a man who married a non-Indian woman retained his status as an Indian. In addition, his wife acquired the status of Indian and his children were classified as Indian.
Early Challenges
[35] The provisions of the 1951 Act, pursuant to which an Indian woman who married a man who was not a registered Indian would lose her Indian status, were challenged under the Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights”), as a violation of the right to equality. In Attorney General of Canada v. Lavell, [1974] S.C.R. 1349 [Lavell], the court, in dismissing the challenge, held that the Bill of Rights was not effective to render inoperative legislation passed by Parliament in discharge of its constitutional function under s. 91(24) of the Constitution Act, 1867, and that equality before the law under the Bill of Rights meant equal treatment in the enforcement and application of the law. Mr. Justice Laskin, in dissent, however, described the provisions at issue as effecting a statutory excommunication or statutory banishment of Indian women and their children, a separation to which no Indian man who marries a non-Indian is exposed: see Lavell at 1386.
[36] In 1976, Canada became a signatory to the International Covenant on Civil and Political Rights (“ICCPR”) (adopted December 16, 1966, entry into force March 23, 1976) G.A. Res. 2200A (XXI) (accession by Canada 19 May 1976, Can. T.S. 1976 No. 47). Article 27 of the ICCPR provides:
In those States in which ethnic, religions or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to process and practice their own religion, or to use their own language.
[37] In 1975, following the Supreme Court of Canada’s dismissal of the Lavell case under the Bill of Rights, Sandra Lovelace, a Maliseet Indian who lost her Indian status upon marriage to a non-Aboriginal man, challenged the marrying out provision of the Indian Act under Article 27. On July 30, 1982, the United Nations Committee on Human Rights found Canada in violation of Article 27 of the ICCPR because it effectively denied Sandra Lovelace the right to access her culture, her religion and her language: see Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) [Lovelace UN].
Movements for Reform
We are stripped naked of any legal protection and raped by those who would take advantage of the inequities afforded by the Indian Act. We are raped because we cannot be buried beside the mothers who bore us and the fathers who begot us, although dogs from neighbouring towns are buried on our reserve land: because we are subject to eviction from the domiciles of our families and expulsion from the tribal roles; because we must forfeit any inheritance or ownership of property; because we are divested of the right to vote; because we are unable to pass our Indian-ness and the Indian culture that is engendered by a woman in her children: because we live in a country acclaimed to be one of the greatest cradles for democracy on earth, offering asylum to refugees while, within its borders, its native sisters are experiencing the same suppression that has caused these people to seek refuge by the great mother known as Canada.
(Standing Committee, September 13, 1982, testimony of Mary Two-Axe Earley, President, Quebec Equal Rights for Indian Women, at p. 4:46.)
[38] Whatever had been the attitude and motivations of previous generations, by the 1970’s and through the 1980’s successive federal governments recognised the need for reform of the provisions with respect to registration that discriminated against women and their descendants. The impetus toward reform of these provisions grew with the Charter, and in particular, with the impending coming into force of s. 15 on April 17, 1985. In addition, successive federal governments undertook a re-evaluation of the relationship between the government and First Nations, and in particular, the role of the government in determining band membership.
[39] These themes were mirrored in two major movements for reform within the First Nations. In the years leading up to the passage of Bill C-31 in 1985, there were two major movements for reform of the Indian Act. The first was the movement for women’s rights that sought to eradicate the different treatment of men and women with respect to the determination of status pursuant to the Indian Act. Arguing that the different treatment constituted discrimination, reformers pressed for the restoration of status to those who had lost status, and the amendment of the Indian Act to create a non-discriminatory scheme for the determination of status.
[40] A second movement, which may be characterized as an Aboriginal rights movement, sought increased powers of self-government for bands. One argument advanced by advocates was that Aboriginal people had never given up their right to define their own membership. Accordingly, it was not for the federal government to decide on the terms of band membership, even for the purpose of effecting reform.
[41] These two movements were to some degree at odds on the issue of reforms to the Indian Act concerning status as an Indian. For example, in 1982 Dr. David Ahenakew, National Chief of the Assembly of First Nations, testified that the bands must take control over all issues related to membership including reinstatement of women [Standing Committee, September 8, 1982, at p. 1:72]. Chief Sol Sanderson of the Federation of Saskatchewan Indians spoke about the conflict between group and individual rights which would occur if only the discrimination under s. 12(1)(b) was addressed:
All we are saying is that if you deal with the individual right in isolation from the collective right, part of the collective right being the right of men and women to form their own governments and to determine their own policy on citizenship questions, that is part of the civil and political right issue that you are talking about under international standards. So you are taking away from it. By dealing with the one issue on a sex basis, you are discriminating against all Indians, never mind women, under those standards that you are citing to me now.
(Standing Committee, September 8, 1982, at p. 1:89.)
See also the evidence of the Neskainlith Indian Band; Standing Committee September 20, 1982 at pp. 5:42-5:43, and the evidence of the Indian Association of Alberta; Standing Committee, September 20, 1982, at pp. 5:104-5:105.
[42] The women’s groups, while not opposed to increased self-government on the part of bands, including control over membership, argued that a prerequisite to any such reform must be a restoration of status to those who had been stripped of their status through the discriminatory provisions. For example, at hearings before the Standing Committee in 1982, the Native Women’s Association of Canada recommended three changes and stated that they would support band control of membership if these three recommendations were adopted:
(a) the deletion or amendment of any section of the Indian Act which discriminates against Indian women on the basis of sex;
(b) the reinstatement of all Indian women who lost Indian status because of s. 12(1)(b) and the registration of their first-generation children; and the “de-listing” of all non-Indians who gained status through marriage; and
(c) the placement of the first-generation children of women who lost status, regardless of whether the mother is still living, on the band list of their mother’s band.
(Standing Committee, September 20, 1982, pp. 5:121-122.)
[43] Some of the representatives expressed a distrust of band governments. The representative of the United Native Nations, representing non-status Indians and Métis in British Columbia, gave the following testimony:
We refuse vehemently to accept allowing present band governments to legislate rules regarding band membership. We totally reject band control in this instance, and the reason is this: At the present time you would only replace discrimination by the DIA with discrimination by Indian governments, band governments. The band governments are not the true governments of their people, because so many of their people are unable to vote in the elections or are unable to live anywhere near the reserves. The bands do not truly represent the tribes. And until all that is corrected and there is a true membership with a true mandate and real constituents, a government representing everyone who wants to be recognized, everyone who traces their lineage back to that tribe and who wants to be recognized, they should all be allowed to participate in voting; then band government would have some meaning and we would be less wary of allowing them to legislate any rules governing our lives.
I just have a note here. We must be given a better route home. The route we have right now is impossible. Some people say you can go to your chief, you can go to your band; they will take you back. This is not so. The monetary problems of course are a very real reason. But I have lost my status and I want to go back home to my ancestral home, which is my mother’s home, and which the Indian Act never provided me. Even when I was registered I was registered with my father’s band, which I have no cultural ties with at all. I want to go home. I want to go to Kingcome Inlet some day when I retire. I would like that route to be one where I would not have to go home and beg someone, or lay a guilt trip on all my people back home to put me back on the band membership list. I could do that, but I would rather the way be easier, a better route home. That is what we want.
(Standing Committee, September 10, 1982, at p. 3:35.)
[44] There were in addition, some First Nations groups that opposed the restoration of status of those women and their children who had lost status as a result of the provisions of the Indian Act. The concern expressed was that restoration, given the numbers involved, would flood the bands with members, many of whom had little or no contact with the reserves. The result, it was argued, would be cultural genocide. For example, the representative of the Indian Association of Alberta expressed vehement opposition to An Act to amend the Indian Act (“Bill C-47”), a prior effort to amend the Indian Act that died on the order paper, stating that “in attempting to bring about sexual equality [Bill C-47] will instead bring about cultural genocide”: Minutes of Proceedings and Evidence of the Standing Committee respecting Bill C-47, June 28, 1984, p. 19:30.
[45] The context in which this opposition was addressed, was the existing legislation in which entitlement to registration or status was linked to band membership and entitlement to live on a reserve.
[46] Arguably, at least in part due to the complexity of the interaction of these forces, the process leading eventually to the passage of Bill C-31 was particularly protracted. For example, in 1984 Minister Munro, speaking in relation to Bill C-47 stated:
The difficulty that has delayed presentation of this Bill is the same delay that has attended the work of both the sub-committee on the rights of Indian women and the special committee on Indian self-government; this is, we are dealing with a conflict between two deeply cherished ideas.
On the one hand, there is the right of women to be treated equally with men; on the other hand, Indian bands want to be able to decide, without outside interference, who is and who is not a member of an Indian band. This latter position is recognized as being a key power of Indian nation governments.
(Standing Committee, June 26, 1984 at p. 17:9.)
Process Leading to Bill C-31
[47]