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Windspeaker.com Contributor
It has taken decades for Sharon McIvor to see her court action fully realized, but on Aug. 15 the federal government finally removed the last of the gender-based discrimination in the Indian Act.
Now an estimated 29,000 First Nations people are immediately eligible to register for full Indian status under the Act, with as many as 450,000 individuals becoming entitled to registration over the next decade.
With the remaining provisions of Bill S-3 coming into force, all descendants born prior to April 17, 1985 to women who lost Indian status or were removed from band lists because of their marriage to a man without status, (a non-Indian), dating back to 1869, will be entitled to registration.
This now brings the women who lost status and their descendants equality under the law with status-Indian men and their descendants.
“I never thought they would ever do it. So I’m totally surprised that they actually came through,” said McIvor, who had married a non-Indian man.
Up until the Indian Act was amended in 1985 under Bill C-31, McIvor and son Jacob Grismer didn’t believe they could be registered as Indians.
The amendments protected Indian women from that point forward from losing their status if they married non-Indian men, and they provided limited reinstatement to Indian women who had lost their status because they married non-Indian men.
But, McIvor and Grismer applied for registration and after overcoming some complications they were awarded status rights. However, the amendments did not allow Grismer’s children to be registered full status First Nations individuals.
McIvor argued that her brother, although married to a non-Indian woman, would see his grandchildren receive Indian-status, but McIvor’s grandchildren would not receive that same treatment.
She challenged the changes as discriminatory against women under section 15 of the Charter of Rights and Freedoms and so began a series of long, tumultuous legal battles.
In 2011, Bill C-3 Gender Equity in Indian Registration Act (the McIvor amendment) was adopted in response to a court ruling. Canada re-instated Indian women and their descendants born prior to 1985 through designating the women 6(1)c Indian status while the Indian men and their descendants born prior to 1985 were all grandfathered in as 6(1)a, the fullest form of Indian status.
Bill C-3 had also introduced the 1951 cut-off, marking the time when the modern registry was created and women who had lost their status already were not part of that registry. (That cut-off has now been removed.)
In response to these inadequacies, the Descheneaux Case was launched in 2011 by three women members of the Abenakis of Odanak First Nation. The court ruled that sex-based inequities remained in the Indian Act and needed to be addressed.
Bill C-3 also spurred on McIvor to plead her case with the United Nations. This past January, the United Nations International Covenant on Civil and Political Rights committee ruled that Canada had to take action to do away with discrimination that was “solely as a result of preferential treatment accorded to Indian men over Indian women… and to patrilineal descendants over matrilineal descendants born prior to 17 April 1985.”
The UN committee also criticized the Canadian government for delaying those changes because of what Crown Indigenous Relations Minister Carolyn Bennett said was the need to consult with First Nations. The UN committee said it was “not appropriate … to consult about whether it will continue legislated discrimination.”
While Bill S-3, the means by which the government addressed the findings of the Descheneaux case, received Royal Assent in December 2017, not all of it was implemented at that time, but now, as of the Aug. 15 government announcement, anyone previously entitled under the 6(1)(c) paragraphs of the Indian Act now being entitled under the new 6(1)(a) paragraphs.
Despite having the UN in her corner though, McIvor said she had little faith in Bennett’s announcement in June that the last two sections of Bill S-3 would come into effect prior to the fall federal election.
“You don’t know how many ministers of Indian Affairs I’ve dealt with over the last few decades who have told me that this would happen,” said McIvor.
Neither Bennett nor her department gave McIvor the heads-up about the Aug. 15 announcement, although both McIvor and her son are named in the government’s news release.
“Bringing these remaining provisions of Bill S-3 into force responds to the National Inquiry into Missing and Murdered Indigenous Women and Girls' calls to Justice and is in line with the United Nations Human Rights Committee decision on the claim brought forward by Sharon McIvor and Jacob Grismer,” reads the release from Indigenous Services Canada.
“Over the years, no matter who the minister of Indian Affairs has been, because I’ve taken an adversarial role, they only speak to me in a public venue. If we happen to be at the same venue at conferences they will deliberately come up to me and acknowledge me, but other than that, I don’t get any communication from them at all,” said McIvor.
With the full implementation of Bill S-3, those who were categorized under 6(1)(c) Indian status will automatically be moved to the 6(1)(a) status.
“But there are a lot of people who have to figure out how to get registered. That has to be done,” said McIvor.
The Congress of Aboriginal Peoples is calling for an implementation plan that includes a “strategy for serving a population of off-reserve and urban status Indian that is about to grow dramatically. “
Government statistics indicate that 98 per cent of those immediately impacted by S-3 live off-reserve.
Once registered, they will be eligible for federal benefits and services such as Treaty payments, post-secondary education funding, and Non-Insured Health Benefits.
None of these newest changes personally impact McIvor. She and her son were registered through the 1985 amendments and her grandchildren were registered through the 2011 amendment. But that wasn’t reason to back down.
“Those who were disentitled, who were born way before my brother and I and their lines are back in. That’s what’s important for all of us,” she said. “These people were born with their right and they had their right denied for all that length of time and so I continued the fight … (because) we’re responsible for those next generations whether they were born to you or born to somebody else. They belong to all of us.”
But, the removal of gender-based discrimination has come too late for many.
“Somewhere between 2011 and 2019, we’ve lost about 30,000 of those eligible. They likely died waiting,” said McIvor.