Feminist Advocates or Political Hypocrites? UN Human Rights Committee Rules Canada Continuing Sex Discrimination Against Indigenous Women

Sharon McIvor

On January 14th, the United Nations Human Rights Committee issued a ruling that Indian Act sex discrimination violates Canada's international treaty obligations under the International Convention on Civil and Political Rights (ICCPR) to which Canada is signatory, and that Canada must end the discrimination. McIvor argued, and the Human Rights Committee ruled, that the sex-based hierarchy between s. 6(1)(a) and s. 6(1)(c) introduced by the 1985 Indian Act, and continued by the amendments of C-3 in 2011 and S-3 in 2017, violate the right to the equal protection of the law without discrimination based on sex and the equal right of men and women to the enjoyment of their cultures guaranteed in the ICCPR.

The decision held that First Nations women and their descendants are entitled to status on the same basis as First Nations men and their descendants. It ruled that distinctions between the maternal and paternal descent lines, including the "1951 cut-off ", which bars some maternal line descendants born before 1951 from eligibility for status, are discriminatory and are not permissible. It ruled that all those excluded because of sex discrimination, and those denied 6(1)(a) status because of sex discrimination, must be granted full status.

The ruling comes as a result of years of advocacy led by Sharon McIvor in Canadian courts and at the United Nations to secure the right to equal status under the Indian Act for First Nations women and their descendants.

Canada’s Indian Act defines who has Indian “status”. The Act is the rule book set by successive Canadian governments for band councils, and it is racist from top to bottom, from inception to the present day. It is an administrative tool of colonialism.

Under the status provisions until 1985, women were defined by their most proximate patriarch: father or husband. Children were assigned the “status” of their father. In addition, via the infamous section 12(1)(b), Indian women who married anyone other than a status Indian man lost their own status and their children could not be registered as status Indians. From this sexist bureaucratic law flowed a host of negative consequences that have been well documented, including loss of identity, of family proximity, of cultural and political participation, and of access to the meagre services provided through Indian Affairs, as it was known. Because they were not recognized as "Indians" many First Nations women and children were exiled to unwelcoming settler communities infused with racism, where they were, ironically, forever marked as “Indian”.

Compelled by the Charter of Rights and Freedoms prohibitions against sex discrimination, the federal government amended the noxious 12(1)(b) provision in 1985 with C-31. However, the revisions re-enacted the core of the sex discrimination by creating two tiers of status - one for those who already had (6(1)(a) status, and a second lesser category for the re-instates under (6(1)(c). The amendment also led to the pejorative term “C-31 Indian”, attached to those women and their children who acquired or reacquired status through C-31.

After years of pressure, the federal government further amended the Indian Act with C-3 in 2011 and again with S-3 in 2017– but inexplicably continued measures discriminatory on the basis of sex. Women and their children who had (re)acquired status under C-31 had a restricted capacity to pass status on to their own children. Thus, as McIvor demonstrated in her eponymous case, her brother was able to transmit full status to his children – status which would pass to his grandchildren -- while she could confer a second-class status on her children, which could not be extended to her grandchildren.

Why the federal foot-dragging? Shelagh Day, Chair of the Human Rights Committee of FAFIA (Feminist Alliance for International Action), notes that according to the Parliamentary Budget Officer in 2017, around 270,000 “Indians” were excluded by the legislated sex discrimination. Those excluded do not benefit from a federal fiduciary duty to them, from benefits (meagre though they are) nor from treaty payments and so on. In other words, federal costs and obligations are reduced by limiting the numbers of “Indians” through the impugned legislation.

Canada has refused to clean up its own legislation – the Indian Act – because it is reluctant to grasp the nettle of dealing with some opposition in Indian Country, and with the real need for adequately resourcing the Department of Indigenous Services and all First Nations who may be anticipating a sudden spike in demands on their already inadequately funded programs (although there is a distinction between Indian status and reserve residency, and it is unlikely that most reinstates will wish to relocate to reserves). Indeed, the federal government is now arguably avoiding responsibility and implementation by “consulting” with First Nations bands on “citizenship”, conflated with Indian Act categories and processes. The federal government is assuredly troubled by the implications for resources, land claims and new treaty negotiations, as increased populations lead to commensurate claims against the state in these matters.

Historically, Canada has used sex discrimination very effectively as a tool of assimilation, a way to limit the pool of First Nations people to whom it owes benefits and responsibilities. The impugned legislation is also in violation of Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Canada has adopted. Article 8 prohibits all forms of forced assimilation and requires state parties to have redress for all such incidents of assimilation.

It is unfortunate that this and every other Canadian government has always chosen fiscal and political expediency for the state at the expense of some of the most marginalized members of a colonized constituency.

In sum, Canada has been persistently practicing legislated sex discrimination against Indigenous women and their descendants, despite its international commitments and its own Charter of Rights and Freedoms. The federal government is assuredly troubled by the implications for resources, land claims and new treaty negotiations, as increased populations lead to commensurate claims against the state in these matters. The current government, led by a self-declared feminist Prime Minister, claims to support feminism and women’s rights, yet continues to discriminate against Indigenous women, violating Canada’s commitments at international and domestic constitutional law.