By Judith Lavoie, Times ColonistApril 27, 2009
First Nations are in limbo until the federal government decides what to do about a B.C. Court of Appeal ruling that will strike down two sections of the Indian Act unless Parliament manages to rewrite the definition of who is Indian within a year.
Lawyers and aboriginal organizations across the country are pondering the potential chaos that could result from the decision earlier this month, when Justice Harvey Groberman declared two sections of the law determining native status discriminatory and threw the ball to Parliament.
The act was deemed to discriminate against aboriginal women who married non-aboriginal men, as well as their children, since in some cases, women cannot pass status to their grandchildren.
Fallout predictions range from thousands of aboriginal people losing status if the sections are struck down, to a doubling of the number of status Indians -- with a corresponding hit on federal coffers -- if a broad new definition is written in compliance with the Charter of Rights.
The ruling stems from a case launched 20 years ago by a Merritt woman called Sharon McIvor, who lost her native status when she married a non-aboriginal man.
McIvor, a member of the Lower Nicola Band, was able to regain that status for herself and her son through the legal action, but had been unable to have it extended to her son's children. The grandchildren of an aboriginal man and non-aboriginal woman, by contrast, would have status.
Groberman -- with the support of Justice David Tysoe and Justice Mary Newbury -- ruled the law discriminates on the basis of sex and marital status. The court upheld a lower-court decision and agreed changes to the Indian Act in 1985, designed to bring the act in line with the Charter of Rights, created inequities.
While some are hailing the McIvor ruling as a victory for the rights of aboriginal women, others are lamenting that the appeal court decision reduces equality rights gained in the original 2007 B.C. Supreme Court decision, which was appealed by the government.
"The view that everything is in limbo until government decides whether to appeal is one of the very few things that people can be certain of," said Ottawa lawyer Mary Eberts of the Native Women's Association of Canada, an intervenor in the case.
Before 1985, Indian status would be stripped from a woman and her children if she married a non-aboriginal man, although a non-Indian woman marrying an aboriginal man and her children would gain status.
The Indian Act was revised in 1985, but still discriminated against matrilineal lines.
In 2007, B.C. Supreme Court Justice Carol Ross made a ruling in the McIvor case that would have allowed at least 300,000 people who trace their aboriginal ancestry through female lines to apply for status.
Instead, the appeal court, looking at a narrower definition, told Parliament to rewrite the legislation within a year -- something experts say is almost impossible. Now, everyone is waiting to see if either side will appeal. "That is still under consideration," said Mitchell Taylor, senior Crown counsel in the McIvor case.
A decision on whether to apply for leave to appeal to the Supreme Court of Canada will be made before June 5, he said, adding another option would be to ask for a deadline extension.
The appeal decision limits the number of people who can apply for status to one more generation -- grandchildren, while the 2007 ruling called for status to be extended to anyone who could prove that at some point before 1985, a female relative had lost status through marriage.
The 2006 census found just under 700,000 Canadians self-identified as First Nation, but almost 1.2 million described themselves as aboriginal. Status Indians receive tax benefits, prescription-drug coverage and help with post-secondary education. Funding for on-reserve programs depends on the number of status members.
Nanaimo-Cowichan MP Jean Crowder, NDP aboriginal affairs critic, said there is uncertainty about what the appeal decision means. "I'm not sure it is success to strike down the two sections of the Indian Act which give people status."
Michelle Corfield, Nuu-chah-nulth Tribal Council vice-president, applauded the appeal court decision.
Status population could increase by 50 per cent under the ruling, said Corfield, whose two children would gain status. "The implications are huge."
For bands -- which already look after members who do not officially have status -- it would mean federal funding would more accurately reflect the numbers, Corfield said.
Treaty negotiator Judith Sayers said her Hupacasath community would probably double under the multi-generational rule.
It is unlikely First Nations will sign off on treaties until the membership matter is settled, predicted Sayers, who would like government to sit down with First Nations and change the definition.
Grand Chief Doug Kelly of the First Nations Summit, which had intervenor status in the case, said First Nations should decide their own membership.
"If you can attach yourself to a Coast Salish family tree, you are Coast Salish, so how can government make that decision for us?" firstname.lastname@example.org