Sharon McIvor, seen during a press conference in Ottawa on Feb. 13, 2013, and her son brought the case to the UN a decade ago.Sean Kilpatrick/The Canadian Press
The United Nations Human Rights Committee says Canada must remove the discriminatory sections of the Indian Act that deny First Nations women the same rights to Indian status as the act gives to men.
The federal government is aware of the sexist sections of the legislation and embarked more than a year ago on an open-ended consultation with First Nations about how it can be fixed.
But the UN committee says it is not good enough to have a consultation with no fixed end date.
It has found Canada to be in violation of the International Covenant on Civil and Political Rights which, among other things, prohibits discrimination on the basis of sex and says countries must not obstruct Indigenous people from enjoying their culture. It has given the federal government 180 days to report back on the measures it has taken to correct the situation.
Canada has attempted “to avoid responsibility for the impact of its legislated sex discrimination within indigenous communities,” the committee says in a ruling issued earlier this week. “Canada’s Status registration scheme continues to prefer male Indians and their descendants, the alleged sex discrimination is ongoing.”
The case was brought to the United Nations nearly a decade ago by Sharon McIvor, a B.C. lawyer and activist, and her son, Jacob Grismer, who has been unable to pass along his status to his children because he inherited it through matrilineal descent.
The ruling “is a recognition that our Canadian government has continued to discriminate, although they constantly tell everybody that they’ve cleaned [the Indian Act] up,” Ms. McIvor said in a telephone interview from her home in British Columbia on Thursday.
Canada has made various attempts over the years to end the discrimination in the act but has always left some of it intact. Some government estimates suggest that eliminating all of the inequality would increase the Indian rolls by 750,000 to 1.2 million people – though Indigenous and Northern Affairs admits it believes those numbers to be inflated. The Parliamentary Budget Officer estimates the number would be closer to 270,000.
The most recent effort came in 2017 in response to a ruling of a Quebec court, which found that the discrimination rendered some sections of the Indian Act unconstitutional and demanded that they be changed. The government complied, but it removed only as much sexism as was required to meet the requirements of the court.
That resulted in a standoff with the Senate, which said all of the discrimination had to be excised from the Act before senators would agree to pass the government’s amendments into law. The impasse was resolved when the government promised to strip the last vestiges of sexism out of the act but only after an unspecified period of consultation with First Nations.
“Their consultation isn’t a consultation on equality at all,” Ms. McIvor said.
The office of Carolyn Bennett, the Minister of Crown-Indigenous Relations, said the elimination all sex-based discrimination from the Indian Act has been a priority for the Liberal government, and a ministerial special representative has been appointed to work with Indigenous partners to implement additional reforms to registration, membership and First Nation citizenship. The government intends to report to Parliament in June on the implementation plan and next steps.
First Nations groups are divided on what amendments should be made to the act. Some have expressed concerns about changes because they are worried about the increased number of people who would be entitled to share in scarce resources available to those who have status. Others have urged that the act be changed.
Shelagh Day, the chair of the human rights committee of the Canadian Feminist Alliance for International Action which has supported Ms. McIvor in her complaint before the United Nations, said the discriminatory sections for the law, which have been in place for more than 100 years, have had a profoundly damaging effect.
“Prime Minister Justin Trudeau went to the UN General Assembly not so long ago and talked about Indigenous peoples and said that the world expects Canada to live up to international human rights norms, and we expect that of ourselves," Ms. Day said. “This is a very direct ruling on discrimination. I would be surprised, frankly if they [the government] do not respond.”